Saturday, September 18, 2010

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
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.

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