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.
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