Child Care Leave - Model application

Dear friends (male colleagues),
I have uploaded a model application for Child care Leave extension to male employees. I think it has to be addressed to the Director (as the letter has been signed by the Director of DOPT). It may be addressed to the Secretary/Joint Secretary or Director (before sending, you may get the opinion of Gconect boarders) as to whom it should be addressed to.

I request everyone concerned to add any other valid points before submission. They may customise the application according to their specific requirement/need.

Pl. do remember that this cannot be said to be leave specific to female (as this is not Maternity Leave which men can never avail) and child care (especially after the child crosses tender age) is the joint responsibility of both the parents.

Pl. do send your representation through proper channel to DOPT. This is only a draft application. Just wait for one week to 10 days for others' opinions and final application to be uploaded. Meanwhile, those who wish to add something may give their opinion in the comments to this posting.

All the best.
Ramnath

MODEL APPLICATION FOR CHILD CARE LEAVE TO BE ADDRESSED TO DOPT

To
The Director (P&A),
Department of Personnel & Training,
New Delhi.

Sir,

Sub: Request for extension of Child Care Leave to male employees – Regarding.
---

Please refer DOPT's Office Memorandum No.13018/2/2008-Estt.(L) dated: 11th September, 2008 granting Child Care Leave & Office Memorandum No.13018/1/2010-Estt. (Leave) dated 7th September, 2010 relaxing the conditions for availing Child Care Leave by female employees of Government of India. In this regard, I submit the following few lines for extension of child care leave to male employees:-

1)Child care is joint/collective responsibility of both men and women especially after child crosses the tender age and hence extension of the same to either of the parents will render justice. By extending the leave only to female employees, the male employees are absolved of their duties/responsibility towards theire children.

2)As per Guardians Act, 1956, father is the primary guardian of the child.

3)Child care leave is an additional facility (unlike maternity leave which can be availed only by the female employees) to take care of children at the time of specific needs like sickness, examination, etc.

4)It is a fact in many of the offices, male employees avail Earned Leave during the examinations/sickness of their chidlren. For instance, in my case, my 2nd daughter has not been in good health since the 1st week of August, 2010 and she had to be admitted at Hospital (proof enclosed) from _____ for treatment. I had to avail Earned Leave for ___ from_____ to____ and visit Doctors for OP treatment on many days in the mornings/evenings frequently.

5)When situation/need being similar irrespective of being male or female parent to take care of children, only male employee has to avail/exhaust Earned Leave in times of need due to lack of such facility. Hence, extension of Child Care Leave to both parents will be of great help to them.

6)Also, there are many male employees who are single(whose wives have expired) or male employees whose wives work in organizations where child care leave is not in existence and extension of child care leave will be be immense help to them.

7)Extension of child care leave to both parents will boost the morale of male employees in the work place as the sense of feeling of being left out will vanish.

Taking these into consideration, it is requested to extend the child care leave to both parents (by including male employees) being better half.

Yours faithfully,

Model (draft) OA prepared by Mr.Krishnan

One of my friend drafted Model application (Draft OA) for filing case in CAT for the merged scales of 5000-8000, 5500-9000 and 6500-10,500. I think this is useful for all discriminated. Kindly go through and use if it is relevant.

Before the Hon’ble Central Administrative Tribunal, …………………..

O.A.No. of 2010



Name……………….,aged …….
s/o……………………………residing
at................................................ ...... - :Petitioner

Vs

1. Union of India, rep.by
Secretary, Ministry of………………………………..
2. Secretary, Ministry of Personnel,Public Grievances
And Pension,Department of Personnel and Training
Lok Nayak Bhavan, New Delhi 110003
3. Secretary, Ministry of Finance
Department of Expenditure
North Block, New Delhi-110001: Respondents




The petitioner joined the service of Central Government Service as …………………………….in ………………..office, a subordinate office of the Ministry of……………………………………………………………….
2. The Pay and allowances of the Central Government Employees are being revised by the 3rd respondents by gazettee notifications based on the recommendations of the Pay Commissions constituted for the purpose by the govt. of India.
3. Accordingly the Recommendations of the 6th Pay Commission was approved by the 3rd Respondents as Central Civil Services (Revised Pay) Rule, 2008 and notified in the Gazette of India vide GSR No.622(E) dated 29th August, 2008 and in terms of Rule 6 of the Rules, all government servants are required to exercise their option for drawal of their pay in the revised pay structure in the format prescribed in the Second Schedule to the Rules (Exibit -1)
4. The Second Schedule stipules that one can either elect the revised pay structure with effect from 1st January, 2006 ie., from the date of implementation of revised pay OR to continue to draw the old scale till the date of one’s next increment OR till the date of one’s promotion.
5. As usual, the 3rd respondent in the gazette of India at page No.44 and 45 stated 1) what is the present scale,2) what is Revised Pay Scale 3) what is Pay Band 4) what is grade pay and 5) the ground on which the revised pay and grade pay was granted ie., the para No. of the Report under column No.7. under Section I and Section II of Part B of the gazette of India.
6. Accordingly the petitioner opted for revised pay w.e.f. 1st Janunary 2006 whereas the 1st respondent declined the same and allowed only Grade pay of Rs.4200 without any fixation neither in 6500-10,500 nor in 7450-11,500. If the Grade pay is Rs.4200, the pay is to be refixed in the revised scale of 6500-10,500 as the Grade pay of Rs.4200/- is arrived as 40% of the maximum of the scale of pay (ie., 10,500 x 40%=4200). If Grade pay of 4600/- is granted, the pay is to be fixed in 7450-11,500 first because 4600 is arrived as 40% of 11,500.
7. The Government constituted the Sixth Central Pay Commission vide Resolution No. 5/2/2006-E.III(A) dated October 5,2006. Four important Terms of references are reproduced here.

A. To examine the principles, the date of effect thereof that should govern the structure of pay, allowances and other facilities/benefits whether in cash or in kind to the Central Government employees:-

B. To transform the Central Government Organisations into modern,professional and citizen-friendly entities that are dedicated to the service of the people.

C. To work out a comprehensive pay package for the categories of Central Government employees that is suitably linked to promoting efficiency, productivity and economy through rationalization of structures, organizations, systems and processes within the Government, with a view to leveraging economy, accountability, responsibility, transparency, assimilation of technology and discipline.

D. To harmonize the functioning of the Central Government Organisations with the demands of the emerging global economic scenario. This would also take in account, among other relevant factors, the totality of
benefits available to the employees, need of rationalization and simplification, thereof, the prevailing pay structure and retirement benefits available under the Central Public Sector Undertakings, the economic conditions in the country, the need to observe fiscal prudence in the management of the economy, the resources of the Central Government and the demands thereon on account of economic and
social development, defence, national security and the global economic scenario, and the impact upon the finances of the States if the recommendations are adopted by the States.


8. But simultaneously (10 days) before the constitution of 6th cpc, the 2nd respondent vide OM No.20/29/2006-CS.II dated 25th September, 2006 did partiality and upgraded the pay scale of Assistants and Steno grade C(PA) of Central Secretariat Services alone from 5500-175-9000 to 6500-200-10,500 with effect from 15th September, 2006. (Exbit…)

9. Therefore, the 6th cpc in order to fulfil the terms of references in its report para 3.1.3 recommended that Higher pay scales in the Secretariat offices may have been justified in the past when formulation of proper policies was of paramount importance. The present position is different. Today, the weakest link in respect of any government policy is at the delivery stage. This phenomenon is not endemic to India. Internationally also, there is an increasing emphasis on strengthening the delivery lines and decentralization with greater role being assigned at delivery points which actually determines the benefit that the common citizen is going to derive out of any policy initiative of the government. The field offices are at the cutting edge of administration and may, in most cases, determine whether a particular policy turns out to be a success or a failure in terms of actual parity between similarly placed personnel employed in field offices and in the Secretariat. This parity will need to be absolute till the grade of Assistant.

10. Accordingly the 6th cpc further vide Para 3.1.14 parity between Field and Secretariat offices is recommended. This will involve merger of few grades. In the Stenographers cadre, the posts of Stenographers grade II and Grade 1 in the existing scales of Rs.4500-7000/Rs.5000-8000 and Rs.5500-9000 will, therefore stand merged and be placed in the higher pay scale of Rs.6500-10,500. In the case of non-secretariat offices, the posts of Head Clerks, Assistants, Office Superintendent and Administative Officers grade. III in the respective pay scales of rs.5000-8000, Rs.5500-9000 and Rs.6500-10,500 will stand merged.

11. The government of India while accepting the recommendations of the 6th cpc, the 3rd respondent merged the common categories of pre-revised scales of 5000-8000, Rs.5500-9000 and Rs.6500-10,500 with 6500-10,500 being upgraded to the next higher grade in pay band PB-2 ie., to the grade pay of Rs.4600 corresponding to the pre-revised pay scale of 7450-11,500 and the was included at page No.44 under section Section I part B of the Gazette of India as Central Civil Service(Revised Pay) rules, 2008 .

12. The 3rd respondent further issued Office Memoranda based on the above merging vide OM F.No.1/1/2008-IC dated 13th November, 2009 for Field Offices and vide OM No.1/1/2008-IC dated 16th November, 2009 for Central Secretariat Services granted Grade pay of Rs.4600/- w.e.f. 1st January, 2006.
1. As regards other isolated posts having pre-revised 5500-9000 also specific approvals are accorded at par with the common categories revising the existing scale of 5500-9000 to 7450-11,550 with GP under Section II as under:
a. The Primary School Teacher Grade.II (5500-9000) was given 7450-11,500 with GP4600. vide Gazettee notification page No.47 item No.1 of XVII.

b. Trained Graduate Teacher(5500-9000)also were granted the same vide item No.2

c. Senior Surveyor(5500-9000) in Archaeological survey of India were also given vide gazette Notification page No.51

d. The Company Prosecutor grade II drawing 6500-10,500 and grade.III drawing 5500-9000 were merged and upgraded to 7450-11,500 vide page No.51 of the gazettee notification

e. Legal Assistants (5500-9000) were also given vide page No.55

f. The Field office viz.National Informatics Centre of Department of Information Technology granted GP4600 vide letter No.22(2)2008-pers. Dated 12.1.2010.

g. EPFO (under Ministry of Labour) also granted 7450-11,500 to pre-5500-9000 vide letter No.HRD/1(12)99/RR/Pt.II/CATcase dated 29.1.2009.

h. The Employees Insurance Corporation also granted GP4600 vide letter No.A.27/17/2/2006-E.III dated 29.1.2010.

i. Ministry of finance vide OM.No.1/1/2008/IC dated 24.11.2008 extended 7450-11,500 to all Official language posts in the field offices also at par with CSS official language posts.

j. Finally now All India Radio also granted GP4600 even to UDCs and stenographer Gr.III (5000-8000 on ACP).

14. But the respondents 2 and 3 have already granted 7450-11,500 when the UDCs ( pre-revised 4000-6000) were promoted to Assistants on or after 2.1.2006 which is against the constitution ………………. The LDC, UDC and Assistants of Central Secretariat Services (CSS) and Field offices/Subordinate Offices were drawing same pre-revised scales 3050-4590, 4000-6000 and 5500-9000 till 31.12.2005 ie., till 5th cpc respectively and their pay are to be re-fixed based on the CCS(RP)Rules, 2008 as per 6th cpc in the revised pay first w.e.f. 1.1.2006 and grant the grade pay accordingly.


15. Similarly the Stenographers III, II and I working in the Central Secretatariat Service and Field Offices/Subordinate Offices were also drawing same pre-revised scales 4000-6000, 5000-8000 and 5500-9000 till 31.12.2005 (upto 5th cpc) and their pay are to be refixed based on the CCS(RP)Rules, 2008 as per 6th cpc in the revised pay first w.e.f. 1.1.2006 and grant the grade pay accordingly.
16. The Fundamental Rules (FR) and General Financial Rules (GFR) are one and same for the field offices and Central secretariat Services and following different fixations in the Central secretariat Services is against the constitution………………………………. For example, the exhbit No… clarifies the pay of the UDC (pre-4000-6000) is to be fixed on promotion(Assistants) in 7450-11,500 (pre-revised5500-9000) and the pay of these promottees were fixed at the minimum of 7450x1.86x4600. Whereas the UDCs who were promoted prior to 1.1.2006 ie., seniors and senior most to the pre-revised scale of 5500-9000 are declined the scale of 7450-11,500 and its fixation at the minimum. For example an Assistant in the Field office and Central Secretariat Services who was drawing pay of Rs 6025 as on 1.1.2006 in the pre-revised scale 5500-9000 was fixed as 6025x1.86+4600 and declined fixation in 7450-11,500 whereas his/her junior most who was promoted after 2.1.2006 are fixed at the minimum 7450 x 1.86+4600 in the scale 7450-11,500.
17. Whenever a pay commission report was implemented and approved by government what is available on the date of implementation ( ie.,from 1.1.2006 in the present 6th cpc) only can be opted from the date of next increment or date of promotion through option. Now the rules are violated and those who were opted the revised pay from 1.1.2006 are not allowed fixation from 1.1.2006 whereas the juniors and junior most are allowed re-fixation in the higher scale. It is a total violation discrimination among the central government employees as what is available to the same scale and post on 1.1.2006 only can be opted for the juniors on or after 2.1.2006 ie., w.e.f. the date of next increment/promotion.

18. The other relevant para graphs of the recommendations which approved by government of India are reproduced below:

a) Para 2.2.19 –salient features of the 6th cpc – recommended scales of 5000-8000, 5500-9000 and 6500-10,500 have been merged to bring parity between field offices; the Secretariat; the technical posts; and the workshop staff. This was necessary to ensure that due importance is given to the levels concerned with actual delivery. It is also noted that a large number of anomalies were created due to the placement of Inspectors/equivalent posts in CBDT/CBEC and Assistants/Personal Assistants of Central Secretariat Services/CSSS in the scale of 6500-200-10,500. The scales of Rs.5500-175-9000 and Rs.6500-200-10,500, in any case, had to be merged to resolve these anomalies.

b) Para 3.8.1of cpc Common categories of staff are those categories that are engaged in similar functions spread across various Ministries/departments/organizations of the Central Government. These catgegories are not limited to any specific ministry of department and, therefore, any decision taken for them impacts more than one Ministry/department/organization.

c) Para 3.8.3(g) of cpc As a measure of delayering, the Commission has recommended merger of the pay scales of Rs.5000-8000, 5500-9000 and Rs.6500-10,500. In a large number of cases, posts in these pay scales have existed as feeder and promotion post……In all such cases, the interests of personnel in the erstwhile promotion grade have been protected by ensuring that their seniority as well as higher pay is kept intact in the revised running pay bands being recommended by the Commission. But by granting fixation in 7450-11,500 at the minimum and GP4600 to the UDCs on their promotion, the cpc version “that their seniority as well as higher pay is kept intact in the revised running pay bands” is only a mere dialogue and cheating the senior employees as these seniors in CSS and field offices are continued to get less salary than their juniors and junior most.

19. The 3rd respondent in their RTI reply committed that parity vide para 3.1.14 of the 6th cpc has already been implemented vide Sl.No.II of Part B of the first schedule to CSS(RP)Rules, 2008. Sl.No.II of part B states that 5000-8000, 5500-9000 and 6500-10,5000 are merged.
20. Because of the discriminatory and contradictory stand of respondents 2 to 3, the seniors and and senior most are getting lower scale and lower fixation, whereas their juniors and junior most are given higher fixation
21. The 2nd respondent while notifying the Central Civial Service (Revised Pay) 2008 has not approved any special scale to Assistants in CSS alone in view of historical parity prevailed between CSS and field office and re-iterated by 6th cpc in its recommendations para 3.1.14 . Otherwise it would have been reflected in the Gazetee Notification as was done for the Section Officers of CSS in page No.44. (Section II). So the grade pay 4600 and fixation in 7450-11,500 is to be paid for these merged categories from 1.1.2006 instead from 15.9.2006 for both Central Secretariat Service and Field office (non-secretariat offices).
22. Though there were historical parity between field offices and CSS, the fixation was done contradictory and violating FR and GFR
23. In para 8 of this OA stated that vide OM No.20/29/2006-CS.II dated 25th September, 2006 the 2nd respondent did partiality and upgraded the pay scale of Assistants and Steno grade C(PA) of Central Secretariat Services alone from 5500-175-9000 to 6500-200-10,500 with effect from 15th September, 2006. But the actual delivery of the government machinery is taking place at the field level as per the recommendation of the 6th cpc vide paras 2.2.19 and 3.1.3 and the cpc recommended merging of these scales 5000-8000, 5500-9000 and 6500-10,500 from 1.1.2006 and not from 15.9.2006. Since the field offices are at the cutting edge of administration and may, in most cases, determine whether a particular policy turns out to be a success or a failure in terms of actual parity between similarly placed personnel employed in field offices and in the Secretariat. This parity will need to be absolute till the grade of Assistant in the field office and Secretariat from 1.1.2006.

24. A discriminatory and contradictory stand is taken by the respondents. The Hon’ble CAT in its judement in OA. No.164/2009 (MA.141/2009) dated 19th February, 2009, OA.No.1165/2010 dated 9.4.2010 have categorically delivered that this clearly shows that the 6th CPC recommendations have been adhered to not only in the CSS/CSSS but also in the case of other Organisations, who have had historical parity. As such, exclusion of the other employees and not meeting out the same treatment without any intelligible differentia having reasonable nexus with the object sought to be achieved, is an unreasonable classification and an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India. Through the OA 164/2009 and OA No.1165/2010 , the hon’ble CAT quashed the government stand and granted parity upto the level of Section Officer in the CSS and field offices.

R E L I E F S

1. Call for the records leading to the issue of and quash Annexure (reply of the Minsitry……..(1st respondent)
2. Direct the respondents to extend the benefit of fixation for the merged scales in 7450-11,500 with effect from 1.1.2006 with grade pay of Rs.4600 including fixation at the minimum of the pay ie., 7450x1.86+4600 if the pay drawn was below the minimum as per RCCS(Revised Pay)Rules 2009 –Rule 7 (A) (ii) for both Field office and Central secretariat Services
3. Any other further relief or order as this Hon’ble Tribunal may deem fit and proper to meet the ends of the justice.
4. Award the cost of these proceedings.

CAT case OA 3052/2009 & MA 2118/2009 in AIIMS case

Central Administrative Tribunal
Principal Bench

OA No. 3052/2009
MA No.2118/2009

New Delhi this the 19th day of February, 2010.

Hon ble Mr. Shanker Raju, Member (J)
Hon ble Dr. Ramesh Chandra Panda, Member (A)

Sudesh Kumar & Others -Applicants

(By Senior Counsel Mr. G.D. Gupta with Shri S.K. Sinha, Advocate)

-Versus-


1. Union of India through the Secretary,
Government of India, Ministry of
Health and Family Welfare,
Nirman Bhawan,
New Delhi.

2. All India Institute of Medical Sciences
through its Director,
Ansari Nagar,
New Delhi-110029.

3. The Secretary,
Department of Expenditure,
Ministry of Finance,
Government of India,
North Block,
New Delhi. -Respondents


(By Advocates Ms. Lata Gangwani for Shri H.K. Gangwani and Shri Sanjeev Joshi for Shri Mukul Gupta)



O R D E R
Hon ble Mr. Shanker Raju, Member (J):


Applicants working as Private Secretary and Personal Assistant (hereinafter referred to as PS and PA) in All India Institute of Medical Sciences (AIIMS) impugn respondents orders dated 25.3.2009 and 26.4.2009 whereby the department of Expenditure, Ministry of Finance conveyed to the AIIMS as to non-extension of Non-Functional Selection Grade (NFSG) to the applicants at par with their counterparts in Central Secretariat Stenographers Service (CSSS) and also the request was rejected by the Government of India, Ministry of Health and Family Welfare. Only the normal replacement scale has been given and not the revised structure as recommended w.e.f. 1.1.2006 to the Central Government employees. Declaration of historical parity with counterparts has been sought for grant of PB-2 in the pay scale of Rs.9300-34800 and PB-3 in the pay scale of Rs.15600-39100 on completion of four years service in the grade of Rs.6500-10500 at par with their counterparts in CSSS, as recommended by the Governing Body of AIIMS to grant the pay scale w.e.f. 5.9.2006 with arrears.

2. Applicants are working as PS and PA in AIIMS, an autonomous organization under the Ministry of Health and Family Welfare. Government of India vide decision dated 24.6.2005 placed PS of Central Government in NFSG of Rs.8000-13500 vide letter dated 24.6.2005 on completion of four years approved service by PS, which has been given consent to by the Department of Expenditure, Ministry of Finance on 25.9.2006. This pay scale of PA was raised from Rs.5500-9000 to Rs.6500-10500 w.e.f. 15.9.2006. There has been a historical parity between the employees of CSSS and AIIMS. Accordingly, the Finance Committee on ratifying the proposal recommended this parity. However, the impugned orders rejected the proposal.

3. Learned senior counsel Shri G.D. Gupta appearing along with Shri S.K. Sinha, Advocate contended that as per Regulation 35 of AIIMS Service Regulations, 1999, any matter, which is not provided in the Regulations, Rules as applicable to the Central Government regarding pay and allowances shall be mutatis mutandis adopted. Moreover, in CWP No.3005/2008 decision by the High Court of Delhi on 28.8.2008 as well as in CWP No.4462/1994 in P.S. Gopinath Nair v. AIIMS, the High Court allowed the pay scales at par, which is now sought to be denied to the applicants.

4. Learned senior counsel would further contend that once the recommendations of the Central Pay Commissions had maintained parity between the applicants and their counterparts in CSSS, denying such parity is an invidious discrimination, violative of Articles 14 and 16 of the Constitution of India.

5. Learned senior counsel would contend that as per Regulation 35 of the Regulations of 1999 the claim of applicants is to be treated at par with their counterparts in CSSS.

6. Learned senior counsel states that there has been a historical parity between the cadres of AIIMS and CSSS and applicants discharge onerous duties and responsibilities comparable to their counterparts. The VI Central Pay Commission in paragraph 3.1.9 has accepted the parity and accorded the same, which has to be applied to the applicants.

7. Learned counsel would lastly contend that as the Standing Finance Committee of the Institute recommended parity on approval, which was ratified by the Governing Body, the decision of the Department of Expenditure cannot be countenanced in law. Learned counsel has relied upon a decision of the coordinate Bench of this Tribunal in S.R. Dheer & Ors. v. UOI & Ors., OA-164/2009, decided on 19.2.2009, wherein the same issue of parity has been upheld and on grant of benefits in the pay bands as per VI CPC recommendations as also NFSG the same has attained finality. Learned senior counsel seeks benefit of the aforesaid decision.

8. On the other hand, learned counsel of respondent No.3 would vehemently oppose the contentions and stated that as per Rule 7 (1) of the Rules it is for the Institute to create post and to approve the pay scale. It is in this backdrop stated that the residuary provision of Regulation 35 is not applicable and as an autonomous body the decision not to extend the revised pay scale and the NFSG is justifiable as Department of Expenditure has not approved it.

9. The other respondents, viz., Ministry of Health and Family Welfare though were served, respondents counsel having failed to file reply despite several opportunities, their right to file reply is forfeited. However, their contentions have been taken into consideration.

10. On careful consideration of the rival contentions, insofar as parity is concerned, in S.R. Dheer (supra) the following observations have been made by the Tribunal:

55. A discriminatory and contradictory stand is antithesis to the fairness in law. As the issue of NFSG of RS.8000-13500 to the OSs in case of CBI, a non-secretariat office at par with CSS/CSSS, decision in S.C. Karmakar (supra) was affirmed by the High Court of Delhi. Even the decision of the Tribunal in the case of R&AW Department has been implemented by the Government by grant of pay scale/NFSG to the concerned SOs, by order dated 19.01.2009 and also the SOs/PSs in AFHQ were allowed the pay scale on 25.09.2008. This clearly shows that the 6th CPC recommendations in para 3.1.9 have been adhered to not only in the case of SOs/PSs of the CSS/CSSS but also in the case of SO/PSs in other Organisations, who have had historical parity. As such, exclusion of the CAT employees and not meeting out the same treatment in respect of Grade Pay without any intelligible differentia having reasonable nexus with the object sought to be achieved, is an unreasonable classification and an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India.

56. In the light of the discussions made above, issue no. (i) framed by us is answered to the extent that as in the matter of grant of pay scale there has been an unreasonableness and accepted recommendations having not been followed and applied to the applicants at par with their counterparts in CSS/CSSS, an exception has been carved out as per the trite law to interfere with the decision of the Government in judicial review by us.

As far as the issue No. (ii) is concerned, we have already concluded that the SOs/PSs of CAT have always had historical parity with their counterparts in CSS/CSSS.
Accordingly the issue no. (iii) is answered on the basis of the above observations that such an application is misconceived, misplaced and contrary to law.

57. Resultantly, for the foregoing reasons, we have no hesitation to hold that the decision of the Government to deny Grade Pay of Rs.4800/- in PB-2 to the PSs and SOs of the CAT initially and Grade Pay of Rs.5400/- in PB-3 on completion of four years service in the grade is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India, since they are having established historical parity with their counterparts in CSS/CSSS and, therefore, applicants are entitled to these Pay Bands with Grade Pay. The interim order is made absolute. The difference in arrears of pay shall be disbursed to the applicants within a period of one month from the date of receipt of a copy of this order. The OA is accordingly allowed to the aforesaid extent. No costs.


11. As we find that the parity has always been maintained between the applicants and their counterparts in CSSS and the Governing Body of AIIMS has also approved the proposal, non-extending the same, when all functional requirements are identical, is violative of the principle of equal pay for equal work , which has assumed a Fundamental Right as per the dicta of the Apex Court in State of Kerala v. B. Renjith Kumar, (2009) 1 SCC (L&S) 142. We also find the claim of applicant in pari materia with the claim of PS and PA in the Central Administrative Tribunal, where the issue of parity based on the VI CPC recommendations has since been upheld and the orders have been implemented, applicants cannot be discriminated despite being in autonomous organization by virtue of Regulation 35, where the Government Rules and Instructions and the decision in pay and allowances would mutatis mutandis extend to them.

12. In the result, for the foregoing reasons, OA is allowed to the extent we quash the impugned orders at Annexure A-1 and A-2. We direct re-examination of the claim of the applicants for grant of NFSG of Rs.8000-13500 w.e.f. 15.9.2006 and also extend revision of pay scale in PB-2 and PB-3 to the applicants with arrears by passing a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order. No costs.


(Dr. Ramesh Chandra Panda) (Shanker Raju)
Member (A) Member (J)



San.

Senior Auditors case on parity - 14.9.1999

Shri Hironmoy Sen And 267 Ors. vs Union Of India (Uoi) And Ors. on 14/9/1999
JUDGMENT
D.N. Baruah, J. (Vice Chairman)
1. 268 applicants have approached this Tribunal by filing this present application. Permission under the provision of Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 has been granted to the applicants to proceed in this single application. The applicants in this O.A. have prayed for a declaration that the applicants and entitled to the scale of pay of Rs. 1640-2900/- (pre-revised) i.e. before 5th Pay Commission and have further prayed for a direction to the respondents to extend the benefit of the said scale with retrospective effect equal to the Assistants of the Central Secretariat. For the purpose of disposal of this present application short facts may be narrated as follows:
2. The applicants are at present working as Senior Auditors in the office of the Principal Accountant General (Audit), Assam and Meghalaya. The scale of pay of the Senior Auditors earlier was similar to that of the Assistants of the Central Secretariat. Some Assistants of the Central Secretariat being dissatisfied with the scale of pay filed an Original Application No. 1538 of 1987 before the Principal Bench of the Central Administrative Tribunal claiming higher scale of pay on the grounds mentioned in the said application. The said O.A. was disposed of by the Principal Bench by order dated 23.5.1989 directing the respondents that the anomally identified in the judgment should be referred to by the first respondent to the Anomally Committee as mentioned in para 45 of the order for disposal in accordance with the procedure prescribed. Pursuant to the said decision the Government of India issued Office Memorandum No. 2/1/90-CS-IV dated 31.7.1990 raising the scale of pay of the Assistants of Central Secretariat. We quote the relevant portion of the said Office Memorandum:
"..... The President is now pleased to prescribe the revised scale of Rs. 1640-60-2600-EB-75-2900/- for there-revised scale of Rs. 425-15-500-EB-15-560-20-700-EB-25-800/- for duty posts included in the Assistant Grade of Central Secretariat Service and Grade 'C' Stenographers of Central Secretariat Stenographers Service with effect from 1.1.1986. The same revised pay scale will also be applicable to Assistants and Stenographers in other Organisations like Ministry of External Affairs which are not participating in the Central Secretariat Service and Central Secretariat Stenographers Service but where the posts are in comparable grades with same classification and pay scales and the method of recruitment through Open Competitive Examination is also the same."
However, neither the Principal Bench nor the Office Memorandum made any distinction with the Senior Auditors regarding the responsibility, status, nature of work and educational qualification etc. which are the guiding factors for making distinction of one post to another. There was no observation that the Senior Auditors were in any way less than that of the Assistants in the Central Secretariat. In fact the applicants in the O.A. No. 1538/87 never raised the issue that their responsibility, status and nature of work were higher than the Senior Auditors. The present applicants claim that the responsibility, status, educational and other qualifications of the Senior Auditors are at par with the Assistants of the Central Secretariat and therefore they are entitled to get the benefit of the Office Memorandum dated 31.7.1990 in similar way. The representations had been made by the applicants to the authorities, however to no avail of.
Being aggrieved the applicants filed O.A. No. 45/92 claiming inter alia that they should be given the same benefit of Annexure-IV Office Memorandum dated 31.7.1990 on the grounds mentioned therein. It was also contended that the Government arbitrarily discriminated them from that of the Assistants with no reason whatsoever. In the aforesaid O.A. the applicants contended that they were at par with the staff of the Central Secretariat Service which had been given the benefit of the other increased scale of pay as referred to in Annexure IV Memorandum dated 31.7.1990. The said O.A. 45/92 was disposed of by order dated 2.11.1994. While disposing of the O.A. this Tribunal summarised their contentions in para of the judgment as follows:
"(i) Historically the posts of the applicants and the Assistants of the Central Secretariat Service were on par.
(ii) The minimum educational qualification in the entry level for the direct recruit Assistants of Central Secretariat Service and the Auditors of IA and AD is the same namely graduation.
(iii) The Senior Auditors are drawn from the posts of Auditors after qualifying at the departmental examination with limited number of chances and after acquiring functional knowledge for at least three years as Auditors."
To sum up the contentions of the applicants that the educational qualification for entry into the service and the responsibility of the job are identical with that of the Assistants of the Central Secretariat. This Tribunal considered the pleadings and framed the following issues for consideration as referred to in para 9 of the judgment as follows:
"1. Whether the applicants are entitled to get parity of pay scale with the Assistants and Stenographers Grade 'C' of the Central Secretariat Service on the principle of Equal Pay for Equal Work and on the basis of other grounds raised by them?
2. Whether the refusal to grant the applicants pay parity by the respondents is in violation of Articles 14, 16 and 39(d) of the Constitution of India?
3. Whether the respondents have acted contrary to the recommendation of the Fourth Pay Commission arbitrarily and illegally?"
Before deciding those points this Tribunal observed in para 11 of the judgment that the case of the applicants rested on the following grounds:
1. Historically there was parity of scale.
2. Educational qualification at the entry level is the same.
3. The duties of applicants as assistants in Audit Department are no less onerous than those of the Secretariat Staff.
4. There is no rational basis for differentiation in scales.
5. The action of the respondents is arbitrary and discriminatory." Thereafter on the first ground this Tribunal held hereunder :
"..... We are therefore inclined to hold that historically there was parity in the pay scale of applicants and Assistants in Central Secretariat....."
Regarding qualification also this Tribunal found that they were similarly placed with the Assistants. The nature of duties and responsibilities were also not less than the Assistants in the Central Secretariat. On corning to the conclusion the Tribunal thus decided the matter in favour of the applicants holding that they were of equal status having same qualification and the responsibility and therefore they were entitled to get the similar treatment and accordingly directed to re-consider the matter in the light of the observations made in the judgment and made following directions:
"We however feel that we will be better advised to leave the matter for fresh and proper decision by the respondents. The respondents can always review their own decision when necessary. We would therefore recommend to the respondents in the interest of justice to re-examine the question and take a suitable decision afresh without postponing the issue to the report of the Fifth Central Pay Commission. We do not make such a direction or stipulate a time limit as we have no doubt that the reasons that have persuaded us to make the recommendation as reflected in the foregoing discussion will receive due and expeditious attention from the respondents. The fresh decision whichever way it may be taken however shall be communicated to the applicants."
No appeal was preferred before the Hon'ble Supreme Court against this judgment meaning thereby, the respondents had accepted the judgment. Therefore, it can be taken as a final judgment so far as the present applicants are concerned. Even after the judgment the respondents did not extend the benefit of Annexure-IV Memorandum dated 31.7.1990 to the applicants notwithstanding clear indication regarding the status of the applicants and that of the Assistants. Hence the applicants have filed this application.
3. In due course the respondents have filed written statement. We have heard both sides. Mr. A.K. Phukan, learned Senior counsel appearing on behalf of the applicants assisted by Mr. M. Munir submits that the Government did not take into consideration of the judgment of this Tribunal passed in the said O.A. 45/92. Mr. Phukan also submits that this judgment was followed by the Chandigarh Bench of this Tribunal. In fact the judgment has reached its finality in this regard. Learned counsel further submits that this Tribunal in the aforesaid judgment made it clear that historically the Senior Auditors had been enjoying the same status and the scale of pay with that of the Assistants of the Central Secretariat. This Tribunal further observed that the responsibilities and qualification of the posts were also same, because in order to become a Senior Auditor he should not only be a graduate but is required to undergo certain training etc. and the job to perform by the Senior Auditors are of responsible in nature. According to the learned counsel, Senior Auditors are equal to Central Secretariat Service. Besides, Mr. Phukan tries to emphasise that those points having been finally settled, the Government has no jurisdiction to take a different view by saying that if the similar pay is granted to the Senior Auditors, the Government would be required to give such benefit to other similarly situated persons. Mr. A. Deb Roy, learned Sr. C.G.S.C. for the respondents on the other hand submits that the matter was first considered after the order of the Tribunal passed in O.A. 45/92 but no final decision could be taken because of model code of conduct as the election was announced. After the election, the new Government took a different view. 4. We have perused the pleadings and the written arguments submitted by the parties. The applicants in their application have categorically stated that the Government took a decision to give the same scale of pay which that of the Assistants but this could not be implemented because of the announcement of the general election. Later on new Government decided otherwise. In the written statement, the respondents have stated about it. In para 3 of the written argument, the respondents have stated as follows:
"In compliance of the Hon'bleTribuhal's order the question of higher pay scale to the Sr. Auditors was re-examined and an 'in-principle' decision was taken to grant the higher pay scale equivalent to the pay scale of Assistant in CSS from the date of judgment of this Hon'ble Tribunal, viz. 2.11.1994. The matter was being processed further when holding of General Elections was announced. It was decided by the Government that the proposal might be deferred till the new Govt. takes over, in view of the Model Code of Conduct."
(Emphasis added)
Again in para 12 of the written statement the respondents also report the same thing. We quote the relevant portion of that para :
"..... However, the Government clarified that the decision to revise the scale of Senior Auditors did not imply that the Government had conceded parity with the Assistant in the Central Secretariat Service and that all such matters were to be left for consideration of Fifth Pay Commission. For his purpose a Cabinet Note was prepared by the Respondent No. 2 which was also approved by the then Finance Minister and Minister of State (Personnel and Pensions). But due to the announcement of general election, the then Finance Minister had desired that in view of model code of conduct of the elections, the proposal would have to be deferred till the new Government took over."
The statement made in this paragraph quoted above is however somewhat different from the written submission made by the learned Sr. C.G.S.C. During the course of hearing the learned counsel for the applicant has produced a note dated 2.7.1996 prepared by the Ministry of Finance, Department of Expenditure under the signature of the Under Secretary in-charge.
In para 5 of the said note it is stated as follows:
"The proposal was examined on merits on the directions of the CAT and the then FM had agreed to the proposal to revise the pay scale subject to the approval of the Cabinet. The Cabinet Note prepared by the C and AG was also approved by then FM and MOS (PP). However due to announcement of the general elections then FM had desired that in view of Model Code of Conduct elections, the proposal will have to be deferred till the new Government lakes over."
Same thing was repeated again by letter No. 12(3)/IC/95 dated 15.1.1996 which was written by the Joint Secretary to the Deputy CAG of India. In para 2 of the said letter also there is a reference regarding the granting of Scale of pay equal to Assistants in Central Secretariat. We quote the relevant portion of the said letter:
".... it has been agreed, in principle, to upgrade the scale of pay for the post of Senior Auditors in IA&AD from Rs. 1400-2600/- to Rs. 1640-2900/- from the date of order of the Tribunal, Guwahati Bench viz. 2.11.94...."
These two letters have not been disputed by Mr. Deb Roy. From all those it appears that the Government had taken a decision in principle to give the benefit of higher pay scale at par with that of Assistants of the Central Secretariat. But the decision could not be implemented in view of the announcement of the general election. In this regard we find that the written submission given by the learned Sr. C.G.S.C. is similar to that of those letters even though in written statement we find some difference. Taking all together we can safely come to the conclusion that the Government had taken a decision to give parity of scale with that of the Assistants of the Central Secretariat. Unfortunately this was reversed when the new Government came to power. It is a well settled principle that a decision can be revised by the Government, but there must be some plausible or reasonable ground for doing so. In the written statement it is spelt out that if the applicants are given the benefit of the Annexure-IV Office Memorandum, the Government will have to pay to the others also. Law is well settled in this regard also. If the qualification, nature of duties and responsibilities are similar, the similar benefit must be given. Merely because some more employees will come and claim the similar benefit, in our opinion cannot be a ground for denying the right. If that is so the Government ought to have come forward at that time itself when the Assistants pay was raised by the order of the principal Bench of the Tribunal. They were satisfied with the judgments and therefore did not prefer any appeal before the Supreme Court. Therefore, it is not reasonable to say that similar employees will come and claim the same benefit. We, therefore have no hesitation of coming to the conclusion that the respondents did not properly scrutinise the findings of his Tribunal given in O.A. 45/92 dated 2.11.1994 and also the spirit of the judicial pronouncements. Mr. Deb Roy while supporting the action of the respondents has cited some decisions of the Supreme Court that the Tribunal/Courts should not play a role of an employer by interfering with the pay scale. This is, in our opinion, is well settled principle. But we feel that the order passed by this Tribunal which reached its finality, has not been fully complied with. The Tribunal having come to the conclusion that the nature of job, qualification, responsibility of the Senior Auditors are same or similar with that of the Assistants historically, they had been given the same scale of pay. Even the expert body like Fourth Central Pay Commission also gave similar scale. Government had already taken a decision. We find no justifiable ground to make a departure from that decision of the Government earlier taken. Accordingly we direct the respondents to consider the true spirit and direction given in the judgment dated 2.11.1994 passed on O.A. 45/92 and to pass necessary and appropriate orders regarding the parity of pay. This must be done as early as possible, at any rate, within a period of 4 months from the date of receipt of this order.
Application is accordingly disposed of. However, considering the entire facts and circumstances of the case we take no order as to costs.

CAT order dt.1.8.2007 (One more case in support)

Central Administrative Tribunal - Delhi

Bench: M K Gupta, A A V.K.
Shyam Lal S/O Late Shri Ant Ram And Ors. vs Union Of India (Uoi) Through The Secretary, Ministry Of Finance, Department Of Revenue, Secretary, Ministry Of Finance, Department Of Expenditure, Chairman, Central Board Of Direct Taxes, Govt. Of India, Ministry Of Finance, Department Of Revenue And Chief Commissioner Of Income Tax on 1/8/2007
ORDER
V.K. Agnihotri, Member (A)
1. In this OA the applicants have sought a direction to the respondents to upgrade their pay scales from Rs. 6500-10500 to Rs. 7500-12000, w.e.f. 21.04.2004, with consequential benefits including arrears of pay and allowances.
2. The brief facts of the case are that prior to the 5th Central Pay Commission (CPC, for short), there was a cadre of Supervisor, Grade-I in the office of respondent No. 4 and other offices in the Income Tax Department. The 5th CPC examined and recommended that the cadre of Supervisor, Grade-I, should be re-designated as Administrative Officer, Grade-III (Group-B Gazetted). The said recommendation was accepted by the respondents and, vide order dated 16.02.1999, Supervisor, Grade-I, working in Delhi were re-designated as Administrative Officer, Grade-III (Group-B Gazetted), w.e.f. 15.02.1999. All the applicants have been working as Administrative Officer, Grade-III (Group-B Gazetted), with effect from different dates from 1999 to 2005.
3. The 5th CPC recommended the pay scale of Rs. 6500-10500 for the post of Supervisor, Grade-I, in Income Tax Office (re-designated as Administrative Officer, Grade-III, Group-B, Gazetted), Income Tax Officer (ITO, for short), Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive) in the same scale i.e. Rs. 6500-10500. The aforementioned recommendation of the 5th CPC was duly accepted by the resolution of Government of India dated 30.09.1997 and implemented accordingly.
4. On 21.04.2004, the respondents issued an Office Memorandum, revising the pay scale of Income Tax Officer, Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive) from their present scale Rs. 6500-10500 to Rs. 7500-12000, w.e.f. 21.04.2004, to the exclusion of Administrative Officer, Grade-III (Group-B Gazetted). This order of the Department of Expenditure was duly implemented by the Central Board of Direct Taxes, vide its order dated 22.04.2004. When the applicants came to know about the said order, they made several representations against the exclusion of their post from the said orders dated 21.04.2004 and 22.04.2004. Since there was no response from the respondents, the present OA was filed.
5. In this case MA No. 597/2006 has been filed by the applicants under Rule 4(5)(a) of the Central Administrative Tribunals (Procedure) Rules, 1987 for joining together in a single application.
6. On the final date of hearing i.e. 16.07.2007, this Tribunal passed the following order:
Arguments heard. Order Reserved.
Respondents are directed to place on record High Power Committee Report as well as the manner in which the applicants representations had been rejected as observed vide reply para 'K' (page 7 of the reply).
This should be done within a period of three days.
Respondents wanted a week's time to produce the documents. We do not think it justified to grant them more than 3 days time as all the respondents are situated in Delhi and learned Counsel is appearing for all the respondents which include Ministry of Finance.
7. However, the counsel for the respondents could not supply the report of the High Power Committee within the period prescribed. After the prescribed period of 3 days, when the counsel for respondents was present in the Court on 23.07.2007, he was asked about the supply of documents. He informed that a Miscellaneous Application was being filed seeking more time. According to the Registry, an MA has been filed on 23.07.2007 seeking another week's time for production of records and is under process. However, the time of one week sought by the respondents expired on 30.07.2007, but no documents were filed. Under the circumstances, the M.A., even if admitted, would be infructuous now.
8. The applicants have contended that 5th CPC, on detailed examination, found that the respective duties & responsibilities and the principle of horizontal relativity demanded that the posts of Administrative Officer, Grade-III (Group-B Gazetted) and the posts of Income Tax Officer, Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive) should be placed in the pay scale of Rs. 6500-10500. The said recommendations were duly accepted by the Central Government, clearly recognizing the similarity in duties & responsibilities of all the aforementioned posts. After the recommendations of 5th CPC, there has been no change in the nature of the duties & responsibilities in any of the aforementioned categories of posts. In such a situation, the order dated 21.04.2004, enhancing the pay scale of only ITO, Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive) is clearly discriminatory against the applicants. The said order has ignored the similarity in duties & responsibilities as well as the principle of horizontal relativity. It was incumbent upon the respondents to enhance the pay scale of the applicants too to Rs. 7500-12000.
9. The applicants have further contended that the post of Income Tax Inspector, Inspector (Central Excise), Examiners Customs and Preventive Officer (Customs) are Group-C non-Gazetted posts. Thus, 5th CPC had rightly fixed the pay scale of the applicants, who are Group-B Gazetted, at a higher level than that of Income Tax Inspector (ITI, for short), Inspector (Central Excise), Examiners Customs and Preventive Officer (Customs). However, by order dated 21.04.2004, the vertical relativity of the post of Administrative Officer, Grade-III, vis-a-vis that of Income Tax Inspector, Inspector (Central Excise), Examiners Customs and Preventive Officers (customs) has been totally disturbed by a mere administrative order.
10. The applicants have also argued that the duties & responsibilities, educational qualifications and other material particulars in respect of the posts of the applicants and that of Income Tax Officer, Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive) were found to be the same by 5th CPC and, therefore, all the said posts were granted the same scale of pay by maintaining the horizontal as well as vertical relativity. The Central Government had duly accepted the recommendations of the said expert body. Thereafter, it is illegal and arbitrary on the part of the respondents to enhance the pay scale of only the other posts to the exclusion of the posts of the applicants. The said action of the respondents is clearly violative of Articles 14 & 16 of the Constitution of India.
11. The respondents have contended that the OA is barred by delay and laches as the pay scale of the ITOs and ITIs were upgraded in April, 2004. The respondents have stated that grant of higher scale of pay was the long pending demand of the Income Tax Inspectors and Income Tax Officers of the Income Tax Department. They had raised this issue with 5th CPC, who did not accept it. The ITOs and ITIs, however, continue to agitate their demand. Keeping in view the persistent demands, the then Finance Minister constituted a High Power Committee. The Committee, inter alia, recommended higher pay scales to the officers/officials as under:
Group 'B' : Rs. 2200-4000 (pre-revised) corresponding to Rs. 7500-12000 (revised) Section 14 level
CBEC : Appraisers, Superintendents (Central Excise), Superintendents Customs (Preventive)
CBD T : Income Tax Officers
Based on these recommendations, the Department of Revenue sent a proposal for aforementioned upgradations for consideration of the Department of Expenditure, which agreed with the proposal.
12. The respondents have contended that 5th CPC did not establish any relativity among the posts of Administrative Officer, Grade-III, and ITOs in CBDT and Appraisers, and Superintendents in CBEC. Moreover, Recruitment Rules and duties & responsibilities of these posts are distinctly different. ITI in the pay scale of Rs. 6500-10500 with three years regular service in the Grade, who have qualified in the departmental examination for ITOs, are eligible for promotion to the post of ITO. But in the case of Administrative Officer, Grade-III, Office Superintendents (from amongst in the scale of Rs. 5500-9000) with three years regular service in the grade are eligible for promotion to Administrative Officer, Grade-III, and there is no requirement of passing a departmental examination before promotion. Further, duties of ITOs are altogether different from those of Administrative Officer, Grade-III. Administrative Officer, Grade-III, basically performs the duties relating to day to day service matter of Officers/staff as well as supervision and/or house keeping/ care-taking jobs. On the other hand, ITO has to perform executive as well as semi-judicial functions relating to tax collection. Besides the normal day-to-day office work, ITOs are engaged in revenue collection, detection and investigation of economic offences, search, seizures etc. Therefore, there is no parity in the duties and responsibilities of ITO and Administrative Officer, Grade-III.
13. The respondents have also stated that the representation made by Administrative Officer, Grade-III, was considered by Central Board of Direct Taxes (CBDT, for short), keeping in view the stipulations stated above. The case of the ITOs and ITIs was, however, on a different footing as their demand was long pending and 5th CPC as well as the cadre restructuring of the department could not resolve it amicably. On the other hand, the equation of the post of Administrative Officer, Grade-III, is with all the non-secretariat organizations and upward revision of their pay scale would create anomaly in all the non-secretariat organizations.
14. It has been contended that for grant of "equal pay for equal work", it is essential that the mode of recruitment, qualification prescribed for direct recruitment and for promotional qualification in feeder posts, requirement of passing departmental examination, if any, duties and responsibilities, quality of work and all other parameters for grant of equal pay should be identical with the posts with which parity is being claimed. This not so in the present case as would be evident from the Recruitment Rules for the post of Senior Administrative Officer, Administrative Officer, Grade-II, and Administrative Officer, Grade-III. The respondents have argued that in case the pay scale of the Administrative Wing of the fields offices are tampered with, there will be vast repercussions, as all posts of similar nature with different designations will put forward their claim for grant of higher pay scale and it would be difficult to resist such claims unless an in-depth study of all such posts is carried out by an expert body like the Pay Commission.
15. In their rejoinder, the applicants, apart from reiterating and elaborating on various averments made by them in the main application, have contended that the respondents have not made any comparative assessment of duties & responsibilities of the post of Administrative Officer, Grade-III, in the Income Tax Office with the duties & responsibilities of Superintendent (Central Excise) and Superintendent (Custom Preventive) as well as Income Tax Officer and Appraiser (Custom Excise) for denying the pay scale of Rs. 7500-12000 to the applicants. This is further corroborated by the fact that the respondents have not annexed either the note sheet or any other document where the Competent Authority has applied its mind to the comparative duties & responsibilities of the posts of the applicants vis-a-vis the other posts, which had been placed in the same pay scale of Rs. 6500-10500 by the Expert Body of 5th CPC.
16. The applicants have further argued that the respondents have nowhere explained as to how and in what manner and from what date the said horizontal relativity of the post of Superintendent (Central Excise) et al, vis-a-vis the applicants, was disturbed. Further the respondents have not mentioned as to what is the basis of such disturbance in the context of comparative duties & responsibilities. Thus, it is apparent that the respondents have made a bald averment regarding the duties & responsibilities of the post held by applicants, which is not sustainable in the eyes of law. Obviously the ground put forward by the respondents in the counter affidavit are not in the official records but have been put forward for the first time in the counter affidavit only with the malicious motive of defeating the claim of the applicants by hook or by crook.
17. The applicants have also contended that the respondents have neither produced the report of the so-called High Power Committee not have they indicated the terms of reference of the said Committee. It is apparent that the High Power Committee had not considered the cases of the applicants. It is also apparent that the respondents had not even referred the cases of applicants for consideration to the said High Power Committee. Thus, a co-called High Power Committee, which did not even consider the case of the applicants, cannot be cited as a ground to defeat the lawful claim of the applicants.
18. The applicants have further contended that after the implementation of the recommendations of 5th CPC, the re-designated post of Administrative Officer, Grade-III, were made Gazetted posts and thus the duties and responsibilities of the post have increased. Prior to being made gazetted, the duty of drawing and disbursing officer was not a part of the duties and responsibilities of the said post; but after being made gazetted, financial responsibility and, more specifically, the duty of drawing and disbursing officer (DDO, for short), has become an integral part of the work of Administrative Officer, Grade-III. Besides, most of Administrative Officers, Grade-III, have been declared as Head of Office (HOD, for short). Thus, Administrative Officers, Grade-III, are shouldering much higher duties and responsibilities now than when they were non-gazetted officers.
19. During the course of oral arguments, Shri A.K. Behera, learned Counsel for the applicants, stated that the terms of reference of the High Power Committee have not been provided and, therefore, it is not clear whether the case of the applicants was also considered by the said Committee.
20. Shri V.P. Uppal, learned Counsel for the respondents, stated that there has been a restructuring of the cadre of the Supervisors in the Income Tax Department and a three-tier hierarchy has been created. Thus, in effect, the applicants are asking for the pay scale of the promotional post, i.e. Administrative Officer, Grade-II.
21. Learned Counsel placed reliance on the judgment of the Hon'ble Supreme Court in the case of State of Haryana and Ors. v. Charanjit Singh and Ors. etc. etc. 2006 (1) SCSLJ 1, to emphasize that a party which claims equal pay for equal work has to make necessary averments and prove that all things are equal. Even though persons may be doing the same work but their quality of work may differ. Mere nomenclature designating a person was not enough to come to the conclusion that he was doing the same work as another person so designated. He also cited the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. v. Pradip Kumar Dey JT 2000 (Suppl. 2) SC 449 to argue that the Courts should not intervene in the matters of pay fixation without examining the implications and impact of their duties of other cadres. He thus contended that grant of relief to the applicants will totally disturb the horizontal relativities in the organization because persons in the higher grade will also similarly ask for higher grade and so on and so forth. The cadres, whose pay scales have been revised, do not have the kind of hierarchies that the applicants have. He also cited an order of this Tribunal in the case of Shri Anand Kishore and Ors. v. Union of India and Ors. OA No. 914/2005, decided on 26.05.2006 to argue that in a similar matter the Tribunal had rejected the claim of the applicants therein as the doctrine of equal pay for equal work was not attracted.
22. Shri A.K. Behera, learned Counsel for the applicants, in his rejoinder arguments, contended that the claim of the applicants was not with reference to the doctrine of equal pay for equal work. In the case of the applicants pay parity among various posts had been disturbed. Relying on the judgment of the Hon'ble Supreme Court in the case of Alvaro Noronha Ferriera and Anr. v. Union of India and Ors. 1999 (4) SCC 408, the learned Counsel contended that in a case in which the existing parity in pay scales is disturbed, the burden of proof shifts to the respondents. Similar is the ratio of the judgment of this Tribunal in the case of State of Bihar and Ors. etc. v. Bihar State Workshop Superintendents Federation and Ors. etc. 1993 (24) ATC 368.
23. He further contended that although the respondents have stated that the duties and responsibilities of the applicants are different from those of other cadres, parity in pay scale with whom is sought by the applicants, there is nothing on record to show that any comparative assessment of duties and responsibilities of the concerned posts had been undertaken by the respondents. In this context, he placed reliance on the order of the Madras Bench of this Tribunal in the case of G. Bhuvaneswari v. Union of India and Ors. 1991 (18) ATC 788 wherein it was held that reasons given in the reply affidavit on behalf of the Government cannot be relied upon unless they are supported by official records.
24. Since several rulings were cited by the counsel for the applicants, another opportunity was given to the counsel for the respondents to reply. Shri V.P. Uppal stated that the averments made by the respondents were not reasons subsequently given by a statutory authority, which alone is barred in terms of the judgment of the Hon'ble Supreme Court in the case of Mohinder Singh Gill v. Chief Election Commissioner, New Delhi , cited by the Madras Bench of this Tribunal in the case of G. Bhuvaneswari (supra). He further contended that there was also the issue of limitation. Since the OA was filed on 29.03.2006, wherein an order of respondents dated 21.04.2004 has been challenged. He further pointed out that the Recruitment Rules (RRs, for short) of the post of applicants and ITOs have been amended, vide Gazette Notifications dated 30.12.2004 and 21.12.2004 respectively. The pay scales have thus been revised with reference to the current duties and responsibilities of the various cadres. In this context, he cited the judgment of the Five Member Full Bench of this Tribunal in the case of M.V. Rao and Ors. etc. etc. v. Union of India and Ors. ATFBJ 2002-2003, p. 260, wherein disturbing of historical parity was upheld.
25. We have heard the learned Counsel for the parties and perused the material on record.
MA No. 597/2006
26. Through this MA a request has been made by the applicants to permit them to file a single application to join together. Since the applicants are working in the same organization and have the same grievance, the MA is allowed.
OA No. 743/2006
27. In this OA the main contention of the applicants is that historically they had horizontal parity in the pay scale with ITO, Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive). Upon acceptance of the recommendations of the 5th CPC, the applicants, along with other officers aforementioned, were placed in the pay scale of Rs. 6500-10500. However, this horizontal parity has been disturbed by the order of the respondents dated 21.04.2004 (Annexure A-4), whereby the officers aforementioned have been given the revised pay scale of Rs. 7500-12000 and certain other officers like ITI, Inspector (Central Excise) etc., who were earlier on a lower pay scale of Rs. 5500-9000, have now been upgraded to the same pay scale as that of the applicants, i.e. Rs. 6500-10500.
28. The applicants have argued that, as a matter of fact, after the 5th CPC, the applicants, having been made Gazetted Officers, have been assigned additional duties and responsibilities by being designated as DDO. In addition, most of the applicants have also been declared as HOD.
29. The applicants have contended that this revision in the pay scales of several officers, vide order dated 21.04.2004 (supra), has been ostensibly done on the basis of the recommendations of a High Power Committee (HPC, for short); but the respondents have not brought on record the said recommendations. Thus, it is not very clear as to who were the members of this HPC, what was its terms of reference, particularly whether the case of the applicants was adequately considered by the said HPC, and whether any comparison of duties and responsibilities of the post of applicants with the posts of ITO, Appraiser (Central Excise), Superintendent (Central Excise) & Superintendent (Customs Preventive) was actually made by the HPC or any other body before disturbing the horizontal parity. The applicants have, thus, contended that historical parity in pay scale, maintained over a period of time, cannot suddenly be taken away at the whims and fancies of the respondents.
30. Against this backdrop, we find that the records relating to HPC are of great importance in deciding this case; so indeed is the decision of the respondents on the representation of the applicants, referred to in para (K) of the counter affidavit. However, as aforementioned, the respondents, in spite of having been given ample opportunity to produce the said documents, have failed to submit them even after seeking extension of time by one week.
31. According to the provision of the Indian Evidence Act, 1872, in such a situation the Court can draw inference against the respondents. Section 114(g) of the Act reads, as follows:
114. Courts may presume existence of certain facts. - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations
The Court may presume-
x x x
(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
32. In view, therefore, of the fact that respondents have failed to produce relevant records as per the directions of this Tribunal, it is to be presumed that the apprehensions of the applicants are correct. The respondents have taken action to revise the pay scales of certain categories of similarly placed officers without doing a proper exercise of comparing duties and responsibilities of the applicants with other officers aforementioned, especially Superintendent (Central Excise) and Superintendent (Customs Preventive). In their counter, the respondents have concentrated only on the duties and responsibilities of ITOs, who, according to them, have higher order of duties and responsibilities. They have also stated that ITIs in the feeder grade have to pass a departmental examination to get promoted as ITOs, which is not a requirement in respect of promotion of Office Superintendents to the post of the applicants. They have, however, not spoken a word as to how Superintendent (Central Excise) and Superintendent (Customs Preventive) have more onerous duties or more rigorous system of promotion from the feeder grades, than those of the applicants and what reasons led to the respondents making a departure from the recommendations of 5th CPC, approximately six years after accepting them. It is indeed strange that the respondents have taken the ground that the appointment of HPC and the consequent order dated 21.04.2004 (supra) were on account of a long pending demand of ITOs, which the 5th CPC failed to resolve. It would thus appear as if the constitution of HPC as well as consequent revision in the pay scales, vide order dated 21.04.2004 (supra), were largely the result of more vociferous demands made over a longer period of time by certain categories of officers, done at the expense of others.
33. The respondents have also stated that the revision in the pay scales has been done in the context of amendments to RRs of ITOs and applicants. Admittedly, the RRs were revised on 21.12.2004 and 30.12.2004, whereas the pay scale of ITOs and others were revised, vide impugned order dated 21.04.2004. It indeed amounts to putting the cart before the horse.
34. Taking the totality of facts and circumstances of the case into consideration, we are constrained to draw an adverse inference against the respondents on account of non-production of the material documents, in spite of having been given ample opportunity to do so. There is standard practice among Government advocates to keep the relevant records ready for perusal of the Bench. In the present case, the pleadings were completed on 11.05.2007 and the case was listed for possible final hearing on 05.07.2007, but the critical documents were neither produced at the time of the final hearing nor, as aforementioned, could they be made available after the order was reserved.
35. The contentions raised by respondents too do not constitute a logical basis for disturbing the horizontal parity of pay scales accepted on the recommendations of 5th CPC.
36. In the result, to serve the ends of justice, the OA is disposed of with a direction to the respondents to appoint HPC to look into the grievances of the applicants, on the lines on which HPC was appointed to look into the grievances of other officers, whose pay scales were revised vide order dated 21.04.2004 (supra), and take further action on the basis of the recommendations of the HPC. This HPC will, inter alia, consider the representation of the applicants. HPC shall be appointed as expeditiously as possible and preferably within a period of two months from the date of receipt of a certified copy of this order. HPC shall be directed to submit its recommendations as expeditiously as possible and preferably within a period of four months from the date of its appointment. In the peculiar facts and circumstances of this case, there shall be no order as to costs.

CAT Delhi's order dt.8.2.2007 on parity (One more addl. case for reference)

Central Administrative Tribunal - Delhi

Equivalent citations: 2007 (3) SLJ 320 CAT
Bench: S Raju, R A Neena
D.K. Aggarwal And Ors. vs Union Of India (Uoi) And Ors. on 8/2/2007
ORDER
Shanker Raju, Member (J)
1. Applicants erstwhile Small Industries Promotion Officers (in short 'SIPOs') now working as Assistant Director Grade-II have assailed respondents' order dated 6.5.2005 and consequent denial of pay scale of Rs. 6500-10500 w.e.f. 1.1.1996.
2. It is not disputed that the Cadre Controlling Authority in respect of 15 disciplines of this post of SIPOs in the office of Development Commissioner, Small Scale Industries, SIPOs (El) and (Statistics) when promoted recommended IES and ISS respectively without the change in Cadre Controlling Authority. The pay scale of these 15 disciplines of SIPOs in pre-revised scale of Rs. 1640-2900 on the implementation of recommendations of 5th Central Pay Commission have been revised and placed in the pay scale of Rs. 5500-9000. However, subsequently vide order dated 25.8.1998 allowed higher pay scale to the SIPOs (El) in the scale of pay of Rs. 6500-10500 w.e.f. 1.1.1996. Another order passed on 22.7.1999 granted this scale to SIPOs (Statistics). As such, two disciplines of SIPOs, namely Economic Investigation and Statistics were given higher pay scale of Rs. 6500-10500 with arrears w.e.f. 1.1.1996. However, rest of the 13 disciplines of SIPOs were continuing in the pay scale of Rs. 5500-9000 led to formation of Departmental Anomaly Committee on 14.9.2000.
3. After examination of the recommendations of the Departmental Anomaly Committee, respondents have referred the matter for grant of higher pay scale of Rs. 6500- 10500 to all the disciplines of SIPOs on analogy with SIPOs (El) and (Statistics).
4. The order passed thereto on 25.11.2003 re-designating the post of SIPO as Assistant Director Grade-II in the pay scale of Rs. 6500-10500 with prospective effect. Being aggrieved by non-grant of said scale w.e.f. 1.1.1996, the applicants preferred representation resulted into passing of impugned order, which gave rise to the present O.A.
5. Mr. A.K. Behera, learned Counsel of the applicants stated that Departmental Anomaly Committee was constituted as horizontal relationship of SIPOs and their finding has not been adhered to by the Government. As such an invidious discrimination has been meted out without any reasonable basis. The reasons recorded by the Ministry of Finance not to grant the applicants the same pay scale as granted to SIPOs (El) and (Statistics) are in violation of Article 14 of the Constitution of India.
6. Learned Counsel would contend that there has been a historical parity between SIPOs (El) and (Statistics) and Ors. discrimination done after a long time, the burden lise on the respondents to establish as to why discriminatory treatment has been meted out. The reliance has been placed on the decision of the Apex Court in the case of Alvoro Noronlw Ferriera and Anr. v. Union of India and Ors. wherein the following observations have been made:
12. One admitted fact which looms large is that till hike in the pay-scale was brought about in 1982 for Delhi Judges the parity maintained as between Union Territory of Goa and Delhi applied to the same cadre of Judicial Officers. Nobody doubted till then that the nature and dimension of work discharged by the officers of the same cadre of Judicial Officers at two different territories were different from any perceptible standard. It is for the contesting respondents to show that there was change in the nature of work which necessitated the Government to keep two different levels of pay to the same officers working at two different places.
7. Learned Counsel would also rely upon the decision of the Apex Court in the case of State of Bihar and Ors. v. Bihar State Workshop Superintendents Federation and Ors. (1993) 24 ATC SC 368, to substantiate the aforesaid plea by quoting the following observations:
8. We have taken note of the peculiar facts and circumstances of the cases of the respondents. It is an admitted position that they are working as Workshop Superintendents for the last several decades on the basis of the terms and conditions and pay scales in vogue for all this period. It cannot be denied that the All India Council for Technical Education as well as all the other authorities were treating the posts of Workshop Superintendents as teaching posts and had fixed them in the pay scale equivalent to Associate Professors. So far as educational qualifications are concerned, diploma-holders with 8 years' experience as well as degree-holders with five years' experience were eligible for such posts. So far as this category of respondents is concerned, it is a dying cadre and even if in terms, they are not entitled to the grant of UGC scale which can only be made applicable in case of teaching staff serving in the colleges run by the university, we find no justification so far as the respondents are concerned not to allow them the benefit of the pay scales at least equivalent to the post of Assistant Professors. In view of the historical background and the terms and conditions of the service and pay scales remaining applicable to the respondents for a considerable long period of time, we hold that in order to do complete justice, the respondents are entitled to the revised pay scales allowed to the Assistant Professor (Senior Scale) i.e. 3000-100-3500-125-5000.
9. In view of these circumstances, we allow these appeals in part and modify the relief granted to the respondents to the extent that they would be entitled to the revised scales of pay as allowed to the Assistant Professors (Senior Scale) with all consequential benefits. The appellant- State of Bihar shall take suitable steps in this regard within three months from the date of this order. In the facts and circumstances of the case, we make no order as to costs.
8. Mr. Behera, learned Counsel has also contended that in the matter of Anomaly Committee and its recommendations, the findings is ordinarily binding, unless there are cogent and compelling reasons to deprive the similar treatment to the identical situated.
9. Learned Counsel has further placed reliance on the decision of the Apex Court in All India Judges' Association and Ors. v. Union of India and Ors. , to substantiate his plea and referred to the following observations:
14. The most important point in these proceedings appears to us to be as to whether the recommendation of the Shetty Commission laying down different scales of pay should be accepted or not. It is to be borne in mind that pursuant to the judgment in the review case the Central Government had accepted the
recommendation and had constituted the Shetty Commission. Correspondingly, it had deleted from the terms of reference of the Fifth Central Pay Commission the consideration in respect of the pay scales of the judicial officers. Therefore, it can safely be concluded that the Central Government had agreed to set up a pay commission specifically for judicial officers and normally, the recommendations made in that behalf should be accepted unless for some specific and valid reason a departure was required to be made. We may here, bear in mind that the Fifth Central Pay Commission report which was submitted, has been largely accepted by the Government of India with little or no modification. It was, therefore, rightly urged by Mr. F.S. Nariman that there must be good and compelling reasons for the states and the Central Government in not accepting the recommendations of the Shetty Commission.
10. Reliance has also been placed on the decision of the Apex Court in the case of Joint Action Council of Service Doctors' Organisations and Ors. v. Union of India and Anr. , to buttress his plea and referred to the following observations:
(14) As to the contention that the members of the
Petitioner-Association have come to be clothed with a vested right, we would say this is not so inasmuch as what the Tikoo Committee has said is also in the nature of recommendation and unless accepted cannot be said to be binding on the Union of India. No vested right has thus been created by the force of the recommendations of the Committee. It is, of course, correct that what Pay Commission would say would be recommendatory in nature, as distinguished from the decision of this Court: but, as is known, recommendations of a high-powered committee like Pay Commission are not rejected without cogent reasons. We have no doubt that in the background of the present litigation, the Central Government, while taking decision on the recommendations to be made by the Pay Commission, would bear in mind its commitment to Service Doctors given at various points of time. Another reason which has weighed with us in accepting the contention of Shri Goswami is that the benefits to a particular service may not be viewed in isolation; the same have to be dovetailed and matched with benefits to be given to members of other services.
11. On the other hand, Mr. Harinath Ram, learned Counsel for respondents vehemently opposed the contentions of the applicants and stated that grant of pay scale to the applicants as per the recommendations of the departmental Anomaly Committee is not binding on the Government as per the decision of the Apex Court in State of Punjab v. Amar Nath Goyal . Learned Counsel would contend that 5th CPC considered the case of SIPOs for grant of higher pay scale, but had not recommended the said scale. However, SIPOs (El) and (Statistics) have been granted, which are feeder cadre the post of IES and ISS respectively. But the applicants Recruitment Rules were published on recommendations of Anomaly Committee, and accepted, and as such they have been given the pay scale of Rs. 6500-10500 from the date of publication of RRs on 17.7.2004 as per Part 'B' Schedule of CCS (Revised) Pay Scales, Rules, 1997.
12. Learned Counsel for respondents would further contend that being a separate group, no vested right accrues to the applicants to claim benefits from the particular date.
13. We have carefully considered the rival contentions of the parties and perused the material placed on record.
14. Equals cannot be treated unequally. Invidious discrimination is an antithesis to the principles of equality enshrined under Article 14 of the Constitution of India.
15. Though grant of pay scale is a prerogative of the Government to be determined by the expert body, but once there had been an exercise done by the Anomaly Committee to consider the grant of pay scale at par with counterparts and made recommendations thereto, the applicants, in the present case, are entitled to pay scale at par with SIPOs (El) and (Statistics) from the even date has not been adhered to, simply because RRs have been amended later on cannot be countenanced. It is also prerogative of the Government whether accept the recommendations of the Pay Commission or not, but as per the decision of the Apex Court (supra), once a discrimination is meted out, more particularly, in a case of two disciplines, who had been granted higher pay scale on the basis of the functional requirement being identical and once the said historical parity has been maintained, any distinction or differential treatment has to be established and explained by the Government. Moreover, there must be cogent and compelling reasons with the Government not to implement the order and to discriminate within the class. In any action of the Government, the principle of equality demands confirmation of the twin tests laid under Article 14 of the Constitution of India. Accordingly, it has to be established that differential treatment is based on intelligible differential with a reasonable nexus to the object sought to be achieved. It is very illogical and irrational as well that applicants have been granted the revised pay scale from the prospective date, which by necessary implication establishes their entitlement as per the Anomaly Committee's recommendations, yet non-grant from the date, it was made applicable to the counterparts in other disciplines is an invidious discrimination which is not only arbitrary but also offends principle of equality.
16. In the result, for the foregoing reasons, we do not subscribe to the reasons advanced by the respondents in the impugned order. Accordingly, O.A. is allowed as per the terms. The impugned order is set aside. Respondents are directed to re-consider grant of scale of pay of Rs. 6500-10500 to the applicants w.e.f. 1.1.1996 and in such an event, the applicants would be entitled to all arrears and allowances. This shall be done within a period of three months from the date of receipt of a copy of this order. No costs.

Delhi High Court W.P. (C.) No.3349/2010 dt.17.5.2010 in ICAR case

* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.3349/2010
% Date of Decision: 17.05.2010.
UNION OF INDIA & OTHERS . PETITIONERS Through Mr. Keshav Dayal, Senior Advocate with Mr. Gagan Mathur, Mr. Sanjay Kumar
Singh, Advocates.
Versus
V.K. SHARMA & OTHERS .RESPONDENTS Through Mr. Seeraj Bagga, Advocate
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be Yes allowed to see the judgment?
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported in No the Digest?
MOOL CHAND GARG, J.
*
C.M. 6737/2010
Exemptions allowed subject to all just exceptions.
W.P. (C.) No.3349/2010
1. This writ petition has been filed by the petitioners against the
order dated 23.12.2009 of the Central Administrative Tribunal,
Principal Bench, New Delhi (hereinafter referred to as the Tribunal) in
OA No 1499/2009 whereby the Tribunal has directed that the DoPT
W.P.(C.) No.3349/2010 Page 1 of 10 order No 21/36/2003-CSI dated 13.11.2003 be extended to the Section
Officers/Private Secretaries working in ICAR, HQ. The Tribunal has
also directed the respondents to disburse all admissible pay arrears and
recoveries if any made from the employees.
2. Briefly stating, it was the case of the respondents before the
Tribunal that in the Fifth Pay Commission, the Government vide order
dated 13.11,2003 granted non-functional pay scale of Rs 8000-13500
to the Section Officers (SOs) of the Central Secretariat Staff (CSS) with
effect from 01.01.1996 notionally and with all financial benefits w.e.f
03.10.2003. In so far as Section Officers (SOs) of ICAR HQ were
concerned, out of 51 eligible SOs, 33 were allowed the non-functional
pay scale of Rs 8000-13500 exactly in the same manner as for CSS.
When the proposal for remaining 18 SOs was processed, the Ministry of
Finance raised objections stating that the non-functional pay scale was
meant only for CSS. In the result, those SOs working in ICAR HQ who
were drawing non-functional pay scale when retired, did not get
pensionary benefits in that non-functional pay scale. Further, others
also did not get the non-functional pay scale.
3. In March, 2008 report of Sixth Pay Commission was published
and the recommendations of the Sixth Pay Commission was accepted
on 29.08.2008 w.e.f 1.01.2006 and Gazette Notification to that effect
was issued that the scale in respect of Section Officers/ Private
Secretaries as per the notification shall be available only in such of
W.P.(C.) No.3349/2010 Page 2 of 10 those organizations/services which have had a historical parity with
CSS/CSSS.
4. The ICAR on the subject of implementation of Sixth Central Pay
Commissions recommendations for the Assistant Personal Assistant
and Section Officer/Private Secretaries in ICAR HQ issued office
Memorandum bearing No. F.No.7(28)/2008-Estt,1 dated 7.11.2008 inter
alia stating that Ministry of Finance has approved that the pay
structure for Assistants and Section Officers in CSS may be extended to
the Assistants/Personal Assistant and Section Officer/PS in ICAR HQ.
5. However Dept of Expenditure, Ministry Of Finance objected to
ICAR orders No. 33(18)/20003-Estt, dated 09.02.2004 and did not
agree to the same vide their UO No 303/Dir IC/09 dated 16.03.2009 to
the proposal of ICAR. Consequently, it was decided with the approval of
the Ministry of Agriculture and President, ICAR to withdraw the non-
functional pay scale granted to SOs w.e.f. 03.10.2003 and notices to
that effect were issued.
6. Thereafter, respondents filed an OA No. 1499/2009 before the
Tribunal inter alia praying that the respondents be directed to grant
the benefit of non-functional pay-scale of Rs 8000-275-13500 also w.e.f.
01.01.1996 notionally and w.e.f. 03.10.2003 with all consequential
financial benefits, etc which was allowed by the Tribunal.
W.P.(C.) No.3349/2010 Page 3 of 10
7. The learned counsel for the petitioners submitted before the
Tribunal that after the implementation of the Sixth Central Pay
Commission Recommendation, the proposal was again mooted and
considered by the Anomalies Committee of the Ministry of Finance
which did not agree to grant the non-functional pay scale for the SOs of
ICAR HQ during 5th CPC period on par with SOs of CSS. Consequently,
with the approval of the President, ICAR (Agriculture Minister) notices
were issued to all concerned for withdrawing the said scale granted
w.e.f. 03.10.2003 to make necessary recoveries from them.
7. However, the Tribunal after considering the submissions made on
behalf of both the parties observed that though the implementation of
"equal pay for equal work" is the domain of the expert body like Pay
Commission yet judicial review is not altogether excluded. However, the
SOs post of ICAR HQ are similar to the post of SOs in the CSS, as also
the functions discharged by the SOs of both ICAR and CSS were
similar. Hence when the work is equal, the equal pay for equal work
does arise. In this regard, the Tribunal relies upon the extracts of the
relevant Government order, i.e.:
Recommendation No.03.01.09 of the Sixth Central Pay Commission (Pages 65-66)
3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in all Secretariat Services (including CSS as well as non participating ministries/departments/organizations) to Rs. 7500-12000 corresponding to the revised pay band PB 2 of Rs. 8700- 34800 along with grade pay of Rs. 4800. Further, on par
W.P.(C.) No.3349/2010 Page 4 of 10 with the dispensation already available in CSS, the Section Officers in other Secretariat Offices, which have already had an established parity with CSS/CSSS, shall be extended the scale of Rs. 8000-13500 in Group B corresponding to the revised pay band PB 2 of Rs. 8700- 34800 along with grade pay of Rs. 4800 on completion of four years service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified that the pay band PB 2 of Rs. 8700-34800 along with grade pay of Rs. 4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relativities which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs. 4800 in pay band PB-2 is , otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis- mutandis to post of Private Secretary/equivalent in these services as well. The structure of posts in Secretariat Offices would now be as under:-
Post Pre revised scale Corresponding revised pay band and grade pay
LDC Rs.3050-4500 PB-1 of Rs.4860-20200 along with grade pay of
Rs.1900
UDC Rs. 4000-6000 PB-1 of Rs. 4860-20200 along with grade pay of Rs.
2400
Assistant Rs. 6500-10500 PB-2 of Rs. 8700-34800 along with grade pay of Rs.
4200
Section Rs. 7500-12000 PB-2 of Rs. 4700-34800 Officer Rs. 8000-13500* along with grade pay of Rs. (on completion of four 4800
years)
PB-2 of Rs. 8700-34800
along with grade pay of Rs.
5400*
(on completion of four years)
Under Rs. 10000-15200 PB-3 of Rs. 15600-39100 Secretary along with grade pay of Rs. 6600
W.P.(C.) No.3349/2010 Page 5 of 10 Director Rs. 14300-18300 PB-3 of Rs. 15600-39100 along with grade pay of Rs.
7600
*This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS /RBSS and Ministerial/ Secretarial posts in Ministries/Departments organizations like MEA, Ministry of parliamentary Affairs, CVC, UPSC, etc. would therefore be covered. II. Section II of part B on the revised pay scales for certain common categories of staff notified in the Gazette of India on 29.08.2008. (pages 68-69) Sl.No. Post Present Revised Scale Corresponding Pay Para NO. Scale Band & grade Pay of the (In Rupees) report
Pay Grade Pay
Band
1 2 3 4 5 6 7 I Office staff in the Secretariat*
1. Section 6500- 7500-12000, PB-2 4800 Officer/PS/equi 10500 8000-13500 PB-3 5400 valent (On completion (on 3.1.9 of four years completion (Modified of 4 years) by Govt.)
*This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS /RBSS and Ministerial/ Secretarial posts in Ministries/Departments organizations like MEA, Ministry of parliamentary Affairs, CVC, UPSC, etc. would therefore be covered. III. Para 2 (i) of the Ministry of Finance, Department of Expenditure, Implementation Cell U.O. No. 7.1/1/2008- IC dated 30.10.2008.(Page-70)
"Department of Agricultural Research & Education may please refer their file No. 7 (28)/2008-Estt. I regarding the subject cited above.
2. The proposal of the administrative department has been considered in this Department. The proposal is concurred with subject to the following modifications which are in consonance with the pay scales granted by the
W.P.(C.) No.3349/2010 Page 6 of 10 Government to various common category posts in the Central Government:-
(i) Government has approved the following pay structure for Assistants and Section Officers in the Central Secretariat and the same may be extended to Assistants/Pas and Section Officers/Private Secretaries in the ICAR Headquarters only:-
Post Pre revised scale Corresponding revised pay band and grade pay
Assistant/Personal Rs.6500-10500 PB-2 of Rs. 9300-34800 Assistant along with grade pay of Rs. 4200
Section Officer/ Rs. 7500-12000 PB-2 of Rs. 9300-34800 Private Rs. 8000-13500 along with grade pay of Rs. Secretary (on completion of four 4200 years) PB-3 of Rs. 15600-39100 along with grade pay of Rs.
5400
(on completion of four years)
IV. Office Memorandum F.No. 7 (28)/2008-Estt. I dated November 7, 2008.(Page 72)
"The undersigned is directed to state that in pursuance of Ministry of Finance, Department of Expenditure s O.M. No. 7/23//2008-E.III (A) dated 7.10.2008, the applicability of Part B of the First Schedule to the CCS ( Revised Pay) Rules, 2008 in ICAR was examined by a Group of Officers constituted vide Council s O.O. No. 7 (28)/2008-Estt.I dated 3.10.2008. The recommendations of the Group of Officers was accordingly referred to the Ministry of Finance for soliciting their approval. In this regard, the Ministry of Finance vide their U.O. No. 7.1/1/2008-IC dated 30.10.2008 has approved that the pay structure for Assistants and Section Officers in the Central Secretariat may be extended to the Assistants/ Personal Assistants and Section Officers/ Private Secretaries in Indian Council of Agricultural Research Hqrs. as follows:
Post Pre revised scale Corresponding revised pay band and grade pay
Assistant/Perso Rs.6500-10500 PB-2 of Rs. 9300-34800 along with nal Assistant grade pay of Rs. 4200 Section Officer/ Rs. 7500-12000 PB-2 of Rs. 9300-34800 along with Private Rs. 8000-13500 grade pay of Rs. 4200 PB-3 of Rs. 15600-39100 along
W.P.(C.) No.3349/2010 Page 7 of 10 Secretary (on completion of with grade pay of Rs. 5400 four years) (on completion of four years)
* As applicable and implemented in the Central Secretariat.
8. Thereafter the analysis of the Tribunal revealed that (i) there had
been an established parity of the Section Officers in other Secretariat
offices with the SOs of CSS/CSSS; (ii) The pre-revised pay scale for
other Secretariat offices had been acknowledged by the 6th CPC and the
main pay scale for Section Officers, had been shown as Rs.7500-12000,
and non-functional pay scale of Rs.8000-13500 ( On completion of four
years); (iii) The non-functional pay scale of Rs.8000-13500 shall be
available only in such of those organizations/services which have had a
historical parity with CSS/CSSS; (iv) The Ministry of Finance in its U.O.
No.7.1/1/2008-IC dated 30.10.2008, while approving the proposal of
ICAR for the 6th CPC recommendations has acknowledged Rs.8000-
13500 ( on completion of 4 years) as the pre revised non-functional pay
scale for SOs/PS and (v) The PB-3 of Rs. 15600-39100 along with-
Grade pay of Rs.5400 ( On completion of 4 years) has been accepted as
the non-functional pay scale for SOs/PS w.e.f. 01.01.2006 in the 6th
CPC.
9. Thus, the Tribunal came to the conclusion that the 6th CPC has
accepted the historical and established parity between the ICAR HQ,
SO/P.S. with the SO of CSS, so the pre-revised non-functional pay scale
W.P.(C.) No.3349/2010 Page 8 of 10 as admissible to SO of CSS would mutatis mutandis would be
applicable for the SO/PS of ICAR HQ.
10. Thus the argument of the petitioners made before us that there is
no parity between the employees of ICAR with the officers of CSS as
there are differences in the mode of recruitment, nature of duties and
responsibilities, organizational hierarchy etc. is misconceived in the
light of Government order dated 30.10.2008 where it has been approved
that the pay structure for Assistants and Section Officers in the CSS
may be extended to the Assistants/Personal Assistants and Section
Officers/Private Secretaries in ICAR HQ. One more argument advanced
before us is that granting of pay scales is purely an executive function
and hence the Courts should not interfere with the same as it may have
a cascading effect creating all kinds of problems for the Government
and the authorities. However, this argument cannot be sustained as it
is observed by the Tribunal that though fixation of pay and removal of
anomalies is a domain of expert bodies like pay commission and the
forum to decide it, is of the executive, yet judicial review is not
altogether excluded.
11. In these circumstances, we find no reason to interfere with the
order passed by the Tribunal allowing the petition filed by the petitioner
as we do not find any reason to exercise jurisdiction vested in this
Court under Article 226 of the Constitution of India in the facts of this
W.P.(C.) No.3349/2010 Page 9 of 10 case. Accordingly, the writ petition is dismissed with no order as to
costs.
C.M.6736/2010(stay)
In view of the orders passed above, the application has become
infructuous and is dismissed as such.
MOOL CHAND GARG, J.
MAY 17, 2010 ANIL KUMAR, J. 'anb/sg'
W.P.(C.) No.3349/2010 Page 10 of 10