Pl. see the CAT Mumbai Bench Order granting revised upgraded scale to IT Officers/Inspectors, etc. w.e.f 1.1.96.
This would be of some use to similarly placed persons.
The Order link:
https://docs.google.com/viewer?a=v&pid=explorer&chrome=true&srcid=0B_wcN1t0C9s3ZWFiZDgyYzAtYjMwNi00YWY3LWJiZWItMDIyN2QwMTZmOWEz&hl=en_US
Showing posts with label CAT. Show all posts
Showing posts with label CAT. Show all posts
Tuesday, January 24, 2012
Saturday, September 18, 2010
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.
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.
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.
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.
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.
CAT Judgement in OA 1165/2010 dt.9.4.2010 in Court Masters case
judgement in OA 1165/2010
________________________________________
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1165/2010
M.A.No.866/2010
Friday, this the 9th day of April, 2010
Hon ble Shri Shanker Raju, Member (J)
Hon ble Dr. Veena Chhotray, Member (A)
1. Mrs. Sunita Dutt, Court Master
Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
2. Mr. Kedar Ram, Court Master
Central Administrative Tribunal
Principal Bench
61/35, Copernicus Marg,
New Delhi 110001.
3. Mr. Ravi Kanojia,
Court Master, Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
4. Mr. Prakash Chandra Joshi,
Court Master, Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
5. Mr. Lalit Gosain,, Court Master
Central Administrative Tribunal, Principal Bench
61/35, Copernicus Marg, New Delhi 110001.
6. Mr. Jugal Kishore, Court Master
Central Administrative Tribunal, Principal Bench
61/35, Copernicus Marg,
New Delhi 110001.
7. Mrs. Rita Biswas, Court Master
Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
..Applicants
(By Advocate: Shri S K Sinha)
Versus
Union of India through
1. The Secretary,
Ministry of Personnel, PG & Pensions,Department of Personnel & Training,
North Block, New Delhi.
2. The Secretary, Ministry of Finance, Department of Expenditure,
North Block,
New Delhi.
The Principal Registrar,Central Administrative Tribunal,
Principal Bench,61/35, Copernicus Marg, New Delhi.
..Respondents
O R D E R (ORAL)
Shri Shanker Raju
MA 866/2010
MA seeking joining together in a single petition is allowed.
OA 1165/2010
This OA relates to Stenographers Grade C /Court Masters, who are working in the Central Administrative Tribunal, Principal Bench, seeking benefits of re-fixation of pay in the scale of Rs.6500-10500 at par with their counterparts in CSS/CSSS w.e.f. 15.9.2006 and re-calculation of arrears thereof. It is also prayed that the applicants are entitled to the grade pay of Rs.4600/- w.e.f. 1.1.2006 with arrears at par with their counterparts in CSS/CSSS.
2. We find that historical parity of Central Administrative Tribunal staff in respect of Private Secretaries has already been laid at rest on implementation of our directions by the respondents in S. R. Dheer & others v. Union of India & others (OA-164/2009) decided on 19.2.2009, which, in all fours, covers the issue raised by the applicants in the present OA.
3. At this stage, we find that the claim of the applicants instead of being turned down by the Department of Personnel & Training has been kept in abeyance by an order dated 15.5.2007 on the basis of the recommendations of 6th Central Pay Commission (CPC).
4. In these circumstances, we dispose of this OA with a direction to the respondents to treat the present OA as a representation on behalf of the applicants and decide the reliefs prayed for in this OA in the background of historical parity of Central Administrative Tribunal staff with their counterparts in CSS/CSSS, by passing a reasoned and speaking order within a period of two months from the date of receipt of a copy of this order.
Let a copy of the OA be issued to the respondents along with this order.
( Dr. Veena Chhotray ) ( Shanker Raju )
Member (A) Member (J)
/sunil/
________________________________________
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.1165/2010
M.A.No.866/2010
Friday, this the 9th day of April, 2010
Hon ble Shri Shanker Raju, Member (J)
Hon ble Dr. Veena Chhotray, Member (A)
1. Mrs. Sunita Dutt, Court Master
Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
2. Mr. Kedar Ram, Court Master
Central Administrative Tribunal
Principal Bench
61/35, Copernicus Marg,
New Delhi 110001.
3. Mr. Ravi Kanojia,
Court Master, Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
4. Mr. Prakash Chandra Joshi,
Court Master, Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
5. Mr. Lalit Gosain,, Court Master
Central Administrative Tribunal, Principal Bench
61/35, Copernicus Marg, New Delhi 110001.
6. Mr. Jugal Kishore, Court Master
Central Administrative Tribunal, Principal Bench
61/35, Copernicus Marg,
New Delhi 110001.
7. Mrs. Rita Biswas, Court Master
Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi 110001.
..Applicants
(By Advocate: Shri S K Sinha)
Versus
Union of India through
1. The Secretary,
Ministry of Personnel, PG & Pensions,Department of Personnel & Training,
North Block, New Delhi.
2. The Secretary, Ministry of Finance, Department of Expenditure,
North Block,
New Delhi.
The Principal Registrar,Central Administrative Tribunal,
Principal Bench,61/35, Copernicus Marg, New Delhi.
..Respondents
O R D E R (ORAL)
Shri Shanker Raju
MA 866/2010
MA seeking joining together in a single petition is allowed.
OA 1165/2010
This OA relates to Stenographers Grade C /Court Masters, who are working in the Central Administrative Tribunal, Principal Bench, seeking benefits of re-fixation of pay in the scale of Rs.6500-10500 at par with their counterparts in CSS/CSSS w.e.f. 15.9.2006 and re-calculation of arrears thereof. It is also prayed that the applicants are entitled to the grade pay of Rs.4600/- w.e.f. 1.1.2006 with arrears at par with their counterparts in CSS/CSSS.
2. We find that historical parity of Central Administrative Tribunal staff in respect of Private Secretaries has already been laid at rest on implementation of our directions by the respondents in S. R. Dheer & others v. Union of India & others (OA-164/2009) decided on 19.2.2009, which, in all fours, covers the issue raised by the applicants in the present OA.
3. At this stage, we find that the claim of the applicants instead of being turned down by the Department of Personnel & Training has been kept in abeyance by an order dated 15.5.2007 on the basis of the recommendations of 6th Central Pay Commission (CPC).
4. In these circumstances, we dispose of this OA with a direction to the respondents to treat the present OA as a representation on behalf of the applicants and decide the reliefs prayed for in this OA in the background of historical parity of Central Administrative Tribunal staff with their counterparts in CSS/CSSS, by passing a reasoned and speaking order within a period of two months from the date of receipt of a copy of this order.
Let a copy of the OA be issued to the respondents along with this order.
( Dr. Veena Chhotray ) ( Shanker Raju )
Member (A) Member (J)
/sunil/
TA No.1088/2009 of CAT, Delhi on parity
Central Administrative Tribunal
Principal Bench
TA No.1088/2009
New Delhi this the 29th day of January, 2010.
Honble Mr. Shanker Raju, Member (J)
Honble Dr. Veena Chhotray, Member (A)
R.S. Bisht & Others -Applicants
(By Advocate Shri Vikas Sethi for ms. Maninder Acharya, Advocate)
-Versus-
Delhi State Industrial & Infrastructure
Development Corporation through its
Chairman, N-36, Bombay Life Building,
Connaught Circus, New Delhi-1100001. -Respondents
(By Advocate Shri Biji Rajesh for Shri Gaurang Kanth, Advocate)
O R D E R
Honble Mr. Shanker Raju, Member (J):
Applicants, who are Assistant Grade-1, through this TA seek complete parity in the pay scale with their counterparts in Government of India by demanding the pay scale of Rs.5500-9000 w.e.f. 15.9.2006 from the date of their promotion and further revision to the pay scale of Rs.6500-10500 with effect from the same date with all consequential benefits.
2. Applicants, who are working in DSIDC where the pay scale as per the Regulations are adopted at par with Government employees pertaining to the recommendations made by the 3rd, 4th and 5th Central Pay Commissions, state that as per the resolution passed as late as on 17.3.2008 and on 21.12.2008 in the 24th meeting of the Board of Directors for all other categories 6th Central Pay Commissions recommendations at par with Government have been adopted whereas the category of applicants has been left out without any reasonable basis. It is stated that apart from Government, even the DDA in case of their Assistants have accepted the recommendation of the 5th/ 6th Central Pay Commissions regarding revision of pay scale of Rs.5500-9000 to Rs.6500-10500, which has been accorded on RTI by the respondents. In the above view of the matter, it is stated that applicants have been discriminated arbitrarily in the matter of pay scales, which is illegal, as violative of Articles 14 and 16 of the Constitution of India.
3. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that service conditions of applicants under DSIDC (Staff Service) Rules, 1978 it is nowhere mentioned that the respondents are adopting the pay scale applicable to Central Government employees. It is stated that Board of respondents can adopt different pay scales than pay scales existing in Central Government for want of parity. Learned counsel has relied upon a decision of the Apex Court in S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 to buttress his plea.
4. We have carefully considered the rival contentions of the parties and perused the material on record. No doubt, fixing the pay scale is either the prerogative of the expert body or the Government, yet the doctrine of equal pay for equal work has since partaken the character of a fundamental right. The same has to be adhered to, as ruled by the Apex Court in State of Kerala v. B. Renjith Kumar, (2009) I SCC (L&S) 142.
5. In the matter of equality in pay scale, once the counterparts in other departments have been given it is mandated by the Government to examine the matter to bring the concept of parity, as ruled by the Apex Court in State of Punjab v. Surjit Singh, 2009 (11) SCALE 149.
6. As we find as per Staff Service Rules, Rule 7, a saving clause that matters not specifically covered shall be governed by the provisions of the corresponding rules and regulations applicable to Central Government employees. It is no doubt that before implementation of 4th CPC the pay scale of Assistant Grade was at par with the Government employees. It is also established on record that for all other categories the Board has adopted the pay scale meant for Central Government employees, yet the category of Assistant Grade-I has been isolated without any reasonable basis, though it may the prerogative, yet when their counterparts in DDA have been granted the desired pay scale and when the applicants perform identical duties and their functional requirements are also identical they cannot be discriminated in the matter of scale of pay. As there is an invidious discrimination meted out the same cannot be countenanced in the wake of Articles 14 and 16 of the Constitution of India.
7. Accordingly, this TA stands disposed of with a direction to the respondents to re-examine the claim of applicants in the light of our observations and law on the subject for grant of pay scale of Rs.5500-9000 and thereafter Rs.6500-10500 w.e.f. 15.9.2006 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. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
San.
Principal Bench
TA No.1088/2009
New Delhi this the 29th day of January, 2010.
Honble Mr. Shanker Raju, Member (J)
Honble Dr. Veena Chhotray, Member (A)
R.S. Bisht & Others -Applicants
(By Advocate Shri Vikas Sethi for ms. Maninder Acharya, Advocate)
-Versus-
Delhi State Industrial & Infrastructure
Development Corporation through its
Chairman, N-36, Bombay Life Building,
Connaught Circus, New Delhi-1100001. -Respondents
(By Advocate Shri Biji Rajesh for Shri Gaurang Kanth, Advocate)
O R D E R
Honble Mr. Shanker Raju, Member (J):
Applicants, who are Assistant Grade-1, through this TA seek complete parity in the pay scale with their counterparts in Government of India by demanding the pay scale of Rs.5500-9000 w.e.f. 15.9.2006 from the date of their promotion and further revision to the pay scale of Rs.6500-10500 with effect from the same date with all consequential benefits.
2. Applicants, who are working in DSIDC where the pay scale as per the Regulations are adopted at par with Government employees pertaining to the recommendations made by the 3rd, 4th and 5th Central Pay Commissions, state that as per the resolution passed as late as on 17.3.2008 and on 21.12.2008 in the 24th meeting of the Board of Directors for all other categories 6th Central Pay Commissions recommendations at par with Government have been adopted whereas the category of applicants has been left out without any reasonable basis. It is stated that apart from Government, even the DDA in case of their Assistants have accepted the recommendation of the 5th/ 6th Central Pay Commissions regarding revision of pay scale of Rs.5500-9000 to Rs.6500-10500, which has been accorded on RTI by the respondents. In the above view of the matter, it is stated that applicants have been discriminated arbitrarily in the matter of pay scales, which is illegal, as violative of Articles 14 and 16 of the Constitution of India.
3. On the other hand, learned counsel of respondents vehemently opposed the contentions and stated that service conditions of applicants under DSIDC (Staff Service) Rules, 1978 it is nowhere mentioned that the respondents are adopting the pay scale applicable to Central Government employees. It is stated that Board of respondents can adopt different pay scales than pay scales existing in Central Government for want of parity. Learned counsel has relied upon a decision of the Apex Court in S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279 to buttress his plea.
4. We have carefully considered the rival contentions of the parties and perused the material on record. No doubt, fixing the pay scale is either the prerogative of the expert body or the Government, yet the doctrine of equal pay for equal work has since partaken the character of a fundamental right. The same has to be adhered to, as ruled by the Apex Court in State of Kerala v. B. Renjith Kumar, (2009) I SCC (L&S) 142.
5. In the matter of equality in pay scale, once the counterparts in other departments have been given it is mandated by the Government to examine the matter to bring the concept of parity, as ruled by the Apex Court in State of Punjab v. Surjit Singh, 2009 (11) SCALE 149.
6. As we find as per Staff Service Rules, Rule 7, a saving clause that matters not specifically covered shall be governed by the provisions of the corresponding rules and regulations applicable to Central Government employees. It is no doubt that before implementation of 4th CPC the pay scale of Assistant Grade was at par with the Government employees. It is also established on record that for all other categories the Board has adopted the pay scale meant for Central Government employees, yet the category of Assistant Grade-I has been isolated without any reasonable basis, though it may the prerogative, yet when their counterparts in DDA have been granted the desired pay scale and when the applicants perform identical duties and their functional requirements are also identical they cannot be discriminated in the matter of scale of pay. As there is an invidious discrimination meted out the same cannot be countenanced in the wake of Articles 14 and 16 of the Constitution of India.
7. Accordingly, this TA stands disposed of with a direction to the respondents to re-examine the claim of applicants in the light of our observations and law on the subject for grant of pay scale of Rs.5500-9000 and thereafter Rs.6500-10500 w.e.f. 15.9.2006 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. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
San.
CAT order OA No.164/2009 and MA No.141/2009 dt.19.2.2009 on parity for its employees
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.164/2009
MA No.141/2009
New Delhi this the 19th day of February, 2009
Hon ble Mr. Shanker Raju, Member (J)
Hon ble Dr. Veena Chhotray, Member (A)
1. S.R. Dheer,
S/o late Shri C.L. Dheer,
R/o RZ G-123B,
Mahavir Enclave,
New Delhi-110045.
2. Rakesh Sareen,
S/o Shri S.K. Sareen,
R/o B-1/494, Janakpuri,
New Delhi-110 029.
3. Sanjeev Kumar,
S/o Shri V.D. Kaushik,
R/o H.No. 266, Shahbad Mohd.Pur,
New Delhi-110 061.
4. Anand Singh,
S/o Sh. Bishan Singh,
R/o H.No. 243, Sec.3,
Sadiq Nagar,
New Delhi 110 049.
5. N.S.N. Rao,
S/o Shri N.Kameshwar Rao,
R/o H.No. F-354, Sec.9,
Vijay Nagar,
Ghaziabad.
6. Naresh Ahuja,
S/o Shri Gopal Dass,
R/o H.No. 376,
Gali No. 12, Madanpuri,
Gurgaon 122 001 (Haryana).
7. Dinesh Mishra,
S/o Shri J.P. Mishra,
R/o 783, Timarpur,
Delhi.
8. Smt. Vinita Virmani,
W/o Shri Subhash Virmani,
R/o 150, Bannu Enclave,
Saraswati Vihar, Pitampura,
New Delhi 110 034.
9. Santosh Kumar
S/o Shri Shanti Sarup,
R/o H.No. 1708-A/4,
Govindpuri Extension,
Kalkaji, New Delhi-19.
(Applicant nos. 1 to 9 are working as Private Secretary in Central Administrative Tribunal, Principal Bench, New Delhi).
10. Anjani Kumar Jha,
S/o Sh. U.C. Jha,
R/o 583, R.K. Puram,
Sector 4,
New Delhi 110 022.
11. L.R. Sharda,
S/o late Sh. M.L. Sharda,
R/o H-167, Rama Krishana Vihar,
Plot No. 29, 8th Avenue, IP Extn..,
Delhi 110 092.
12. V.K. Srivastava,
s/o late Sh. G.N. Sahai,
R/o F-800, Timarpur,
Delhi.
13. B.K. Juneja,
S/o Sh. K.L. Juneja,
R/o A-586, Sector 9,
New Vijay Nagar,
Ghaziabad (UP).
14. R.C. Pasbola,
S/o late Sh. D.N. Pasbola,
R/o E-5/11, FF Malviya Nagar,
New Delhi 110 017.
15. S. Rangarajan,
R/o E-102, Nanakpura,
Moti Bagh-II,
New Delhi 110 021.
16. Mahendra Kumar Goyal,
S/o late Sh. Rameshwar Dass,
R/o G-22/142, Sector 7,
Rohini, Delhi 110 085.
17. Ram Chander
S/o late Sh. Mohan Lal Sharma,
RZ 46/165, Gali No.7,
Durga Park, P.O. Palam,
New Delhi 110 045.
18. Vijay Kumar
S/o late Sh. Ganpat Rai,
115, Himayun Pur,
Safdarjung Enclave,
New Delhi.
19. Surat Singh
S/o Sh. Nain Singh,
R/o C-1/61, Sector 17,
Rohini, Delhi 110 085.
20. S.P.S. Rawat,
S/o Sh. D.S. Rawat,
R/o 244/94-C, School Block,
Mandawali, Delhi 110 092.
21. Dinesh Chander Singh
S/o late Sh. K.S. Rawat,
R/o RZ-38, Dabri Ext.,
Post Office Palam,
New Delhi 110 045.
22. K.K. Pukhral,
S/o late Shri J.S. Pukhral,
R/o K-10, 2nd Floor,
Khirki Extension, Malviya Nagar,
New Delhi-110017.
(Applicant Nos. 10 to 22 are working as Section Officers in Central Administrative Tribunal, Principal Bench, New Delhi).
-Applicants.
(By Shri G.D. Gupta, Senior Counsel alongwith Shri S.K. Sinha, Advocate)
-Versus-
1. Union of India represented through the Secretary to Government of India, Department of Expenditure, Ministry of Finance, North Block, New Delhi 110 001.
2. The Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi.
(By Advocate Shri A.K. Bhardwaj)
3. The Principal Registrar, Central Administrative Tribunal, Principal Bench, New Delhi. -Respondents.
(By Advocate Shri D.S. Mahendru)
O R D E R
Mr. Shanker Raju, Hon ble Member (J):
Equality in law is a Fundamental Right guaranteed to all citizens of this country under Article 14 of the Constitution of India. Any invidious discrimination, which does not pass the twin tests of reasonableness under the Constitution of India, shall amount to treating the equals differently and is a hostile discrimination not approved in law by the Constitution Bench of the Hon ble Supreme Court in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145.
2. No doubt, in service jurisprudence, legitimate expectation is a cardinal principle though not in substantive law to operate both in procedural and substantive matters, as ruled by the Apex Court in Jitender Kumar v. State of Haryana, 2008 (1) SCC (L&S) 428, as also ruled in M/s Sethi Auto Service Station v. D.D.A, 2008 (13) SCALE 783.
3. In Official Liquidator v. Dayanand, 2008 (10) SCC 1, the Apex Court has held that though not being a right the expectation should be legitimate, reasonable and valid and one has a legitimate expectation of a particular treatment if by any representation or promise made by the authorities expressly or impliedly gives room for such expectation in normal course.
4. In the administrative arena, the orders passed are to be tested on the touchstone of reasonableness, as ruled by the Apex Court in Noida Enterprises Association v. Noida Authority, 2008 (1) SCC (L&S) 672. Equal pay for equal work though may not be a Fundamental Right guaranteed to a government servant, yet an abstract doctrine in consonance with the principle of equality enshrined under Article 14 of the Constitution of India, a hostile discrimination, which is illogical, irrational and illegal and in a case where there is no intelligible differentia which has a reasonable nexus with the object sought to be achieved, similarly placed cannot be invidiously discriminated in the matter of pay scale.
5. Though as a trite law equation of pay primarily concerns the executive Government and expert body, but where all the functional requirements being identical, irrelevant consideration to treat differently in the matter of pay is an exception carved out for interference in judicial review in the matter of equal pay for equal work .
6. With the above backdrop of trite law, this OA has been filed by a group of Private Secretaries and Section Officers working in the Principal Bench of the Central Administrative Tribunal. Though a challenge has been made to orders passed by the respondent No. 2, on 11.9.2008 and 23.10.2008, addressed to respondent No.3, whereby it has been communicated that till a final decision is taken by the Ministry of Finance and necessary amendments are carried out in the recruitment rules, they may be accorded the replacement scales as approved consequent upon acceptance of recommendations of the VI Central Pay Commission, the grievance of applicants is that despite a historical parity being maintained since inception of the Tribunal in 1985 with their counterparts in Central Secretariat Service/Central Secretariat Stenographers Service (hereinafter referred to as CSS/CSSS), they have been deprived of the Grade Pay of Rs.4800/- in Pay Band-2 and on completion of four years service, the Grade Pay of Rs.5400/- in Pay Band-3. Therefore, they have prayed for a declaration that the action of Respondent Nos. 1 and 2 is arbitrary, discriminatory, illegal and violative of Articles 14 and 16 of the Constitution, with a further declaration that PSs/SOs of the CAT have always had a historical parity with their counterparts in CSS/CSSS and are entitled to the Grade Pay of Rs.4800/- and 5400/- on completion of four years service. They have also prayed for quashing and setting aside the orders dated 11.09.2008 and 23.10.2008 and for a direction to the respondents to grant the aforesaid Grade Pay with all consequential benefits w.e.f. 1.1.2006, along with interest on delayed payment.
BRIEF FACTS:
7. Applicants are Private Secretaries (PSs) and Section Officers (SOs) working in the Principal Bench of the Central Administrative Tribunal (CAT). The Tribunal has come into being in the year 1985 when there was no distinction or difference in pay scales with their counterparts in the CSS/CSSS. The hierarchy of Central Secretariat and CAT is explained below in a tabular form:
A) CENTRAL SECRETARIAT
Sl.No.
Name of post Group/Classification 3rd CPC Scale of pay 4th CPC Scale of pay 5th CPC Scale of pay
1 Stenographer Grade D/
UDC Group C (Non-Gazetted)/
General Central Service (Ministerial) Non-Gazetted. 330-560 1200-2040 4000-6000
2 Stenographer Grade C/
Assistant Group B (Non-gazetted)
General Central Service (Ministerial) . 425-800 1400-2600
*1640-2900 5500-9000
3 Private Secretary/
Section Officer
Group B (Gazetted)/
General Central Service (Ministerial) Gazetted. 650-1200 2000-3500 6500-10500
*8000-13000/- (On Completion of four years
4 Principal Private Secretary/
Under Secretary Group A (Gazetted)/
General Central Service (Ministerial) 10000-15200
B) CENTRAL ADMINISTRATIVE TRIBUNAL
Sl.No.
Name of post Group/Classification 3rd CPC Scale of pay 4th CPC Scale of pay 5th CPC Scale of pay
1 Stenographer Grade D/
UDC Group C
(Non-Gazetted)/
General Central Service (Ministerial) Non-Gazetted. 330-560 1200-2040 4000-6000
2 Stenographer Grade C/
Assistant Group B
(Non-gazetted)
General Central Service (Ministerial) . 425-800 1400-2600
*1640-2900 5500-9000
3 Private Secretary/
Section Officer
Group B (Gazetted)/
General Central Service (Ministerial) Gazetted. 650-1200 2000-3500 6500-10500
4 Principal Private Secretary/
Deputy Registrar Group A (Gazetted)/
General Central Service (Ministerial) 10000-15200
8. From the above, it is clear that from the very inception of the Tribunal in 1985, there has been parity between the employees of the CAT with that of their counterparts in the CSS/CSSS and the only disparity, which cropped up was grant of pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade C in the Central Secretariat. Assistants and Stenographers Grade C in CAT represented to the Government for revision of their pay scale to Rs.1640-2900 from Rs.1400-2600, to bring them at par with the corresponding categories in CSS/CSSS. However, their representations were rejected, which led to filing of OA Nos. 2865/1991, 529/1992 as well as OA-178/1992 before the Principal Bench and Cuttack Bench of the Tribunal. The aforesaid OAs were allowed by the Tribunal, directing the respondents to consider grant of revised pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade C of the CAT. Resultantly, Government of India by letter No.G.26012/92-A dated 29.10.1993 granted the pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade C of the CAT w.e.f. 1.1.1992, thus bringing them at par with their counterparts in CSS/CSSS, without waiting for the formal amendment in the Rules. Thereafter vide Gazette Notification dated 25.10.1994, the recruitment rules had undergone amendment, bringing the Assistants/ Stenographers Grade C of the CAT at par with their counterparts in the CSS/CSSS, as annexed by the applicants at Annexure D (colly).
9. An OM was issued by the Department of Personnel & Training (DoP&T) granting a higher pay scale of Rs.3000-4500 to those PSs, who had rendered 8 years regular service in the grade of Rs.2000-3500 and who were attached with the Secretary level officers. Accordingly, PSs, who were attached with Hon ble Chairman/Vice-Chairmen in the CAT, made representations to the Government for granting the same pay scale to them as well on the principle of equal pay for equal work . However, their representations were rejected without any proper justification. Being aggrieved, Shri S.K. Sareen, one of the PSs, who was at the relevant time attached with the Hon ble Vice Chairman, filed OA No.777/1992, which was allowed by the Tribunal vide order dated 20.12.1999. Writ Petition (Civil) No.2500/2000 filed by the Union of India against the aforesaid decision was dismissed on 19.4.2002. Even the SLP No.1565/2003 filed by the Union of India was dismissed on 28.2.2003, affirming the decision of the Tribunal in S.K. Sareen (supra). In compliance of the aforesaid decision of the Tribunal, Government of India passed order dated 9.2.2005 (Annexure G ), revising the pay scale from Rs.2000-3500 to Rs.3000-4500 (pre-revised) and one post of Principal Private Secretary (PPS) was upgraded to the pay scale of Rs.12000-16500 from Rs.10000-15200 as Senior Principal Private Secretary and 16 posts of PSs attached to the Hon ble Vice Chairmen in CAT to Principal Private Secretary from the scale of pay of Rs.6500-10500 to Rs.10000-15200 (pre-revised), thereby again bringing the PSs of the CAT at par with their counterparts in CSSS.
10. Vide order dated 25.1.2006 (Annexure H ), the Government of India granted Non-Functional Selection Grade (NFSG) of Rs.8000-13500 to the PSs/SOs in the CSSS/CSS. Having denied the same benefit to the SOs/PSs in the CAT, some of the PSs working at Ernakulam Bench of the Tribunal filed OA No.475/2006, for grant of NFSG of Rs.8000-13500, claiming historical parity with the PSs of CSSS. The said OA was disposed of with a direction to the respondents to consider the claim of applicants, who are PSs in the Ernakulam Bench of the Tribunal, in the light of the averments made in the OA as well as the legal questions considered in the earlier judgments by the Tribunal and communicate a decision to the applicants. Non-compliance of the order led to filing of CP No.05/2007, which was, after hearing, disposed of on 6.11.2007, with a direction to the respondents to furnish the details of reference to the VI Central Pay Commission either by way of an affidavit by an officer at appropriate level or by filing the copies of the very reference, with copy to the counsel for the applicants, within a period of six weeks and the matter was converted into an execution application and directed to be listed on 2.1.2008. Thereafter, again in MA No.854/2008, a direction was issued on 28.2.2008 to the Secretary, DoP&T to personally handle the matter or at least monitor the matter and try to persuade the VI Central Pay Commission to consider the case of the applicants and other similarly situated. The Principal Registrar, CAT (respondent No.3 herein), was also directed to make available all the relevant materials to the Secretary and have due interaction with the DoP&T. Although in spite of aforesaid directions no reference was made to the Sixth Pay Commission, but, on 21.4.2008, learned senior standing counsel appearing for DoP&T & Ministry of Finance filed compliance affidavit, stating as follows:
I am the Senior Central Government Standing Counsel appearing for the respondents in the above Original Application. This statement is filed on the basis of the instructions furnished by the respondents.
2. The above Miscellaneous Application had been filed by the petitioner/Applicant alleging disobedience of the directions contained in the Annexure P-1 Order of this Honourable Tribunal in Original Application No.475 of 2006 and also such other reliefs.
3. In this connection it is pertinent to note that the Respondents had fully complied with the directions of this Honourable Tribunal in the above Original Application contained in the Order dated 3.4.2007.
4. As per the directions of this Honourable Tribunal in the order dated 28.2.2008 the respondents have fully complied with the order. The Sixth Central Pay Commission has already submitted its report to the Government in which the Commission has examined and recommended the issue of parity of employees of Central Administrative Tribunal with employees of CSS & CSSS cadre in Paragraph 7.32.25 of its recommendations. A True copy of the relevant portion of the Recommendations of the 6th Pay Commission, is produced herewith and marked as ANNEXURE R-1.
5. It is pertinent to submit that pursuant to the Order of this Honourable Tribunal in this case was, the matter was forwarded for the implementation to the Department of Personnel and Training for taking up the matter will Pay Commission. Since the report has already been submitted by the 6th Central Pay Commission to the Government, the directions of this Honourable Tribunal had been complied with.
6. On a perusal of the above facts, it can be seen that the Respondent had fully complied with the directions of this Honourable Tribunal contained in the 3.4.2007 in Original Application NO.475 of 2006 in its letter and spirit and there is no wilful negligence or laches on the part of the Respondent in implementing the order of this Honourable Tribunal within the stipulated time. The Respondent tender unconditional apology for the delay if any, caused in implementing the order of this Honourable Tribunal. Hence the above Miscellaneous Application is liable to be dismissed and this Statement may also be accepted into file as full Compliance Report.
It is pertinent to mention here that the aforesaid compliance affidavit was filed on the basis of the letter dated 27.3.2008 of the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, addressed to the Registrar, CAT, Principal Bench, which reads as follows:
I am directed to refer to your letter No.PB/4/21/06-R dated 20.3.2008 on the above subject and to say that 6th Central Pay Commission have already submitted its report/recommendations to the Government on 24.3.2008. As such, it may not be possible to make any further reference to Pay Commission.
2. However, the 6th Central Pay Commission have in para 3.1.9 and para 7.32.15 of its report (copy enclosed) relating to CAT have already recommended parity between Assistants/Section Officers/Stenographers of CSS/CSSS and similarly placed posts in field offices.
In consonance with the aforesaid authority to the effect that VI CPC has recommended the issue of parity of employees of CAT with CSSS/CSS in para 3.1.9 and para 7.32.15 of the Report, Hon ble Tribunal at Ernakulam, on 26.06.2008 gave a direction to the respondents to work out and disburse pay scale and arrears to all the PSs of the CAT on refixation of their pay. Paras-2 & 3 of the aforesaid order dated 26.6.2008, read as follows:
2. Records would reveal that the Private Secretaries of Central Administrative Tribunal (CAT) had, under the Vth Pay Commission Recommendations been treated at par with their counterparts in the CSS/CSSS Cadre and accordingly the pay scale afforded to them has been made available to the Private Secretaries of CAT as well, with effect from 01.01.1996. Again, vide Annexure R-1 to the counter statement dated 21st April 2008, filed on 16th June 2008, the VI Pay Commission has also confirmed the parity between the two. This means that there is absolutely no question of different pay scales for the posts of Private Secretaries of CSS/CSSS on the one hand and the CAT on the other. As such, when for the Private Secretaries of CSS/CSSS the Government had introduced non-functional pay scale of Rs.8000-13000/-, subject to fulfillment of certain conditions attached thereto, the same non-functional pay scale is expected to be extended to the Private Secretaries of CAT from the very same date and subject to similar conditions. Otherwise, it would amount to derailment by the Government from the finding of the Pay Commission, which is not permissible. Perhaps, the reservation of the respondents earlier, in extending the non-functional pay scale of Rs.8000-13500/- to the Private Secretaries of C.A.T. was on account of the apprehension that the VI Pay Commission may or may not confirm the parity between the two sets of Private Secretaries. Now that in clear terms, parity has been confirmed by the VI Pay Commission, there should be no impediment for the respondents to pass suitable orders extending the pay scale of Rs.8000-13500/- from the date the Private Secretaries of the Central Secretariat Services/CSSS have been granted, subject no doubt to the fulfillment of the requisite conditions attached thereto.
3. It is a matter of record that such a situation in respect of Section Officers of the CBI has also been recently set right by the Principal Bench in OA No.377/06 by its order dated 1st May, 2007, which has been upheld by the Delhi High Court in Civil Writ Petition No.7475 of 2007 and CM No.14234 of 2007 vide order dated 10th October, 2007.
In spite of the aforesaid directions of the Tribunal, Respondents have not passed any order granting the Non-Functional Selection Grade of Rs.8000-13500 to the applicants.
11. It would be relevant here to extract paras 3.1.9 and 7.32.15 from the Report of VI CPC as follows:
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 with the dispensation already available in CSS, the Section Officers in other Secretariat Offices, which have always 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.5400 on completion of four years of 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 pay scale Corresponding revised pay band and grade pay
LDC Rs.3050-4590 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 Officer Rs.7500-12000
Rs.8000-13500*
(on completion of 4 years) PB 2 of Rs.8700-34800 along with grade pay of Rs.4800
PB 2 of Rs.8700-34800 along with grade pay of Rs.5400*
(On completion of 4 years)
Under Secretary Rs.10000-15200 PB 3 of Rs.15600-39100 along with grade pay of Rs.6100
Deputy Secretary Rs.12000-16500 PB 3 of Rs.15600-29100 along with grade pay of Rs.6600
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 MES, Ministry of Parliamentary Affairs, CBC, UPSC, etc., would therefore be covered.
7.32.15 Assistants and Stenographers in Central Administrative Tribunal have demanded pay scales on par with Assistants and Stenographers in CSS/CSSS. The Commission has already recommended parity between similarly placed posts in Field Offices and Secretariat. This will address the instant demand. No separate recommendation is therefore necessary in this case.
12. Government of India vide Notification dated 29.8.2008 approved the recommendations of the 6th CPC and pay scale of SOs/PSs/equivalent in the CSS/CSSS, as specified in Section-II of Part B of CCS (Revised Pay) Rules, 2008, was admissible, according to which, the posts of SO/PS whose pay scale has been revised to Rs.7500-12000 have been placed in PB-2 with Grade Pay of Rs.4800/- and Rs.8000-13500 on completion of four years in PB-3 with Grade Pay of Rs.5400/-. The condition precedent for grant of pay scale is that those organizations, which have had a historical parity with CSS/CSSS service and other organizations like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. were also covered. In implementation of the VI CPC Report, not only in AFHQ Service but also the departments like R&AW of the Cabinet Secretariat, UPSC, CBI, CVC, etc. SOs/PSs, have also been given the NFSG w.e.f. 1.1.1996 notionally and 3.10.2003 on actual basis.
13. Despite specific, clear and unambiguous recommendations of VI CPC, which have been accepted by the Government, a letter was addressed to the Principal Registrar, CAT dated 11.9.2008 wherein Ministry of Finance s Resolution dated 29.8.2008 and Notification of even date were communicated. It has been stated that the pay of the employees of the CAT may be fixed in the replacement pay bands. However, necessary amendments will be carried out in the recruitment rules for various posts in CAT and the CAT (Staff) (Conditions of Service) Amendment Rules, 1988 separately. The pay of applicants was fixed provisionally on 12.9.2008 in the PB-2 with Grade Pay of Rs.4200/-. However, in partial modification of order dated 12.9.2008, the pay of applicants was re-fixed on 6.10.2008 and 7.10.2008 in PB-2 with Grade Pay of Rs.4800/- as per the recommendations of the VI CPC in para 3.1.9 and CCS (RP) Rules, 2008. The pay bills were prepared on the basis of these orders. However, the Pay and Accounts Officer took an objection, as a result of which, an order was passed on 23.10.2008, which decided that the issue of grant of Grade Pay to SOs/PSs of CAT at par with their counterparts in CSS/CSSS is under consideration with the Ministry of Finance. Of late, as transpired from the reply of the respondents, considering the CAT as a non-Secretariat Organization, the Ministry of Finance has taken a decision not to accord the Grade Pay to the applicants at par with CSS/CSSS and to accord the Grade Pay on the basis of the recommendations made in para 3.1.14 of the VI CPC Report.
14. However, by way of an ad interim order, respondents have been directed to grant the Grade Pay of Rs.4800/- to the applicants initially and on completion of four years service in the grade to Rs.5400/-, which has been complied with by re-fixing the pay of applicants but the arrears have not been paid. The VI CPC in its recommendation in para 7.32.15 of its Report insofar as Assistants and Stenographers who demanded parity with their counterparts has stated that as the Commission has already recommended parity between the similarly placed posts of Secretariat and Field Offices, no separate recommendation was found necessary. However, while making recommendation in para 3.1.9 insofar as CSS pay scales are concerned, which were applied to the PSs and equivalent in the services, including SOs, the Pay Bands prescribed to these employees have been mutatis mutandis applied to the counterparts with the condition precedent that they should have a historical parity. In AFHQSS, this has been applied and it also includes the departments/organizations like MEA, CVC, UPSC, and inclusive of the CAT, for which no separate recommendations were made. The extracted portion of para 3.1.9 establishes the aforesaid.
15. While accepting the recommendations, Government of India, Ministry of Finance issued Notification dated 29.8.2008. Definition clause 3 (7) provides revised pay structure in relation to any post specified in column 2 of the First Schedule means the pay band and grade pay specified against that post or the pay scale specified in column 5 & 6 thereof, unless a different revised pay band and grade pay or pay scale is notified separately for that post. Accordingly, Section I of the Notification in Part-B concerns revised pay scales for certain common categories of staff. Section Officers/PS/equivalent under the heading Office Staff in the Secretariat have been allowed PB-2 with Grade Pay of Rs.4800/- and PB-3 with Grade Pay of Rs.5400/- as per para 3.1.9 of the report and those Organizations/Services, which have had a historical parity with CSS/CSSS, have also been accorded the same. However, in Part-II in case of the office staff working in Organizations outside the Secretariat, the recommendations contained in para 3.1.14 have been applied. Neither in the cadre of PS nor SO, the hierarchy shown exists in the CAT, which demonstrates non-applicability of the aforesaid recommendations in para 3.1.14 insofar as CAT and its employees are concerned, for which the recommendations, as referred to ibid would apply.
ISSUES:
16. For proper adjudication of the case, the following issues may be framed:
i) Whether the CAT has jurisdiction in judicial review to interfere in the matter concerning parity of pay on wrong fixation of pay by the Government, pursuant to the recommendations by the expert body like Pay Commission?
ii) Whether the PSs/SOs in CAT have had historical parity with their counterparts in CSSS/CSS?
Whether the decision taken by the Ministry of Finance to apply para 3.1.14 of the recommendations as accepted is legally justifiable?
ARGUMENTS:
17. Learned Senior Counsel Shri G.D. Gupta along with Shri S.K. Sinha, appearing for the applicants would contend that insofar as preliminary objections are concerned, as the impugned orders passed though may be a communication between the DoP&T and respondent No.3, yet its implementation has given rise to filing of the O.A. because of wrong application of accepted recommendations of VI CPC for grant of correct Pay Band structure and pay scales to the applicants. As such a challenge when made on the basis of the illegality, such a challenge is maintainable under law.
18. As regards merging of two categories of employees in single OA, it is stated by the learned Senior Counsel that though the SOs/PSs belong to two different categories but the pay band recommended and principle on which it is recommended, being identical in all respects, the cause of action and the reliefs prayed for also being identical, there is no mis-joinder of parties.
19. As regards interference of the Tribunal in fixation of pay scale, it is stated that once the accepted recommendations have not been implemented without any justifiable basis and the consideration by Ministry of Finance to the recommendations of VI CPC on acceptance is irrelevant, without any basis and logical reasoning, a case of malafide on violation of Articles 14 and 16 of the Constitution of India is writ large on the face of it, as such the grievance of the applicants can be agitated before the Tribunal in accordance with law. To substantiate, learned Senior Counsel has relied upon the following case laws:
Bhikubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., 2008 (4) SCC 144;
K.T. Veerappa & Ors. v. State of Karnataka & Ors., 2006 (4) SCALE 293;
Haryana State Minor Irrigation Tubewells Corporation v. G.S. Uppal & Ors., 2008 (6) SCALE page 44;
Official Liquidator v. Daya Nand & Ors. (2008 (10) SCC page 1;
Union of India v. Mohinder Singh (2008 (1) SLJ HC (Delhi) D.B. page 131;
Union of India & Ors. v. Dineshan K.K. (2008 (1) SCALE 74);
Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & Ors. (2007 (9) SCC page 230).
20. Learned counsel would contend that right from Third Central Pay Commission, once there has been a parity of applicants with their counterparts in CSS/CSSS, which is recommended on acceptance by the VI CPC in para 7.32.15 and 3.1.9, having been accepted by the Government under the CCS (RP) Rules, 2008, denial of pay scale as recommended would infringe Article 39 (d) of the Constitution of India and would amount to infringement to the constitutional doctrine of equal pay for equal work .
21. Learned Senior Counsel would also contend that once the parity between the Assistants/Stenographers Grade `C as also Private Secretaries of CAT and CSS/CSSS had already been established and affirmed upto the level of the Hon ble Supreme Court, any decision arrived at differently by the respondents on administrative side would amount to infiltrate into an arena occupied by judicial pronouncements, which cannot be countenanced in law.
22. Learned counsel would further contend that insofar as applicability of para 3.1.14 is concerned, the same does not apply to the employees of CAT and as conscious of the demand of the CAT staff, including PSs and SOs cadre once in view of the historical parity in the past, no separate recommendations have been made. Para 3.1.9 covers the claim of applicants and once this has been accepted and the condition precedent is satisfied, denial of correct fixation of pay scale is not apt in law.
23. Learned counsel would lastly contend that earlier also even without amending the recruitment rules, the pay scale at par with CSS/CSSS to Assistants/Stenographers Grade C was accorded, and the same methodology should have been adopted by the respondents and being a model employer when not done so, it is a case of arbitrariness and non-application of mind.
24. In the rejoinder, applicants have cited a decision of the Tribunal in OA-377/2006, decided on 1.5.2007, whereby the NFSG has been accorded to the OS of CBI, which has been affirmed by the Hon ble High Court in WP (C) No.7475/2007 & CM No.14234/2007 in Union of India & Ors. v. S.C. Karmakar & Ors., decided on 10.10.2007. The Tribunal in OA 645/2007 has also issued a direction, on 19.08.2008 for grant of NFSG to the SOs in R&AW of the Cabinet Secretariat. The Government has implemented this order, which is evident from the order-dated 19.01.2009. Even in Armed Forces Headquarters, Non-Functional Selection Grade of Rs.8000-13500 has been accorded, vide order dated 25.09.2008 (Annexure RJ-3). It may be relevant to state here that Non-Functional Selection Grade was earlier restricted only to SOs/PSs of the CSS/CSSS, which has now been extended to SOs/PSs of other Organizations/Departments as well. This, according to the applicants, is an invidious discrimination.
25. Learned Senior Counsel would also contend that once before the Ernakulam Bench there has been admission to the effect that VI CPC has recommended the issue of parity of employees of CAT with their counterparts in CSS/CSSS, the recommendation is deemed to be accepted and as such Part B of CCS (RP) Rules, 2008 substantiates the aforesaid plea.
26. Learned counsel would contend that once the parity has been accepted, now taking a somersault and a contradictory stand would amount to approbating and reprobating simultaneously, which is impermissible in law.
27. On the other hand, Respondent No.3, i.e., Principal Registrar, CAT also filed a reply and represented through learned counsel Shri D.S. Mahendru. They have not controverted the historical parity and accepted the plea of applicants for grant of NFSG to them at par with CSS/CSSS. It is also admitted that in the wake of an advice by DoP&T, they had allowed Grade Pay of SOs/PSs of Rs.4800 in PB-2 and on completion of four years service Grade pay of Rs.5400 in PB-3, but as the PAO had not cleared the bills on the advice of other official respondents, the same was withdrawn. In a way, the case of applicants has been fully supported by respondent No.3.
28. Respondent Nos. 1 and 2 are represented by Shri A.K. Bhardwaj, the learned Standing Counsel. Their preliminary objection is that the orders impugned are inter-departmental communications, which do not fall within the definition of orders under Section 19 of the Administrative Tribunals Act, 1985. It is also stated that two different categories have been clubbed together in the OA, which amounts to non-joinder. It is also stated that fixation of pay scale for the employees is the prerogative of Government and cannot be interfered with by this Tribunal. The decisions in Hiramony Sen v. Union of India, Civil Appeal No.7232 of 2003, Union of India v. Tarti Ranjan Das, 2004 (1) SCSLJ 47 and S.C. Chandra & Ors. v. State of Jharkhand & Ors., JT 2007 (1) SC 272 have been relied upon.
29. Learned counsel would also rely upon the decision of the Delhi High Court in CWP No.102/2001 Mohinder Pal Singh & Ors. v. Union of India & Ors, decided on 4.2.2002 whereby in the wake of Customs and Excise Stenographers, their request for bringing them at par with CSSS was turned down. Also relied upon is a decision of the Larger Bench of this Tribunal in M.V.R. Rao and Ors. etc. etc. v. Union of India & Ors., 2002-2003 ATFBJ 260, to contend that the claim of Stenographers and Assistants of subordinate and attached offices of Government of India in the pay scale of Rs.1640-2900 at par with their counterparts in CSSS has been turned down.
30. Learned counsel would contend that specific pay scale recommended by VI CPC in case of office staff working in the non-Secretariat Organization is as per para 3.1.14 of the Report. On implementation, the Government modified the recommendations of the VI CPC as to NFSG to be granted to the SOs/PSs of CSS/CSSS. At the same time, no modification was made to the recommendations relating to AOs and Senior Private Secretaries in the non-Secretariat Organizations.
31. Learned counsel would contend that VI CPC recommended the upgraded pay scale of Rs.7500-12000 (pre-revised) and NFSG Rs.8000-13500 after four years to the SOs/PSs in all Secretariat offices, including CSS/non-participating Ministries but as CAT is a non-Secretariat Organization, the pay of applicants is to be fixed differently.
32. Lastly, it is stated that the recommendations as to grant of parity with CSS has not been accepted by the Ministry of Finance.
33. In the rejoinder, reiteration of the claim of applicants has been made by the learned Senior Counsel.
34. We have carefully considered the rival contentions of the parties and perused the material on record.
CASE-LAWS:
35. Fixation and grant of pay scales is the prerogative of executive and are left to the expert body like Pay commission. Any recommendations made by the Pay Commission are subject to acceptance or rejection. Unless the Government has accepted the recommendations of Pay Commission, Court cannot proceed to direct the Government to accept and apply in a particular case as held by the Apex Court in Union of India vs. Arun Jyoti Kundu, 2007 (2) SCC (L&S) 695.
36. In Tarit Ranjan Das (supra) with regard to Pay Commission conclusion and the jurisdiction of the Court in judicial review, it is held that for the Court it is not open to sit in judgment as an appeal over the conclusion of the Commission. Also held by a three Judge Bench of the Apex Court in M. P. Rural Agriculture Extension Association vs. State of M.P., 2004 SCC (L&S) 667 that Article 14 does not forbid reasonable classification and the Court cannot prescribe equal scales of pay for different class of employees and when recommendations are made by a Pay Commission where the evaluation of job has been made would not be interfered with to issue any writ in the nature of mandamus. In State of Karnataka & Ors. vs. N. Parameshwarappa & Ors., 2005 SCC (L&S) 120, with the following observations, it is ruled that the manner of differentiation sought to be made by the Government for denying the benefit of revised pay scales when not rested on any firm or definite legal stand is not tenable:-
7. We have carefully considered the submissions made on either side. In our view, the approach, the method of dealing and the manner of differentiation sought to be made by the authorities of the Government for denying the benefit of the revised scales of pay to the respondent category of teachers alone does not seem to rest on any firm or definite legal stand. The benefit of coverage is found extended to all the teachers in first-grade degree colleges, also called as composite colleges and merely because such colleges have been permitted to have pre-university courses also, the teachers should not be discriminated merely on the ground as to which teacher is assigned, at a particular point of time to teach which class of students, though individual entitlement of each of the teachers may depend upon the fulfilment of other requirements stipulated therefor. This is obvious, in our view, from the omission of the State to bring forth positively and definite factual aspect for such differential treatment not only before the High Court but also in this Court which necessitated this Court on 16-1-2001, 24-4-2001 and 26-7-2001 to issue directions calling for disclosure of the specific stand and statement of facts to have an effective adjudication of the issue. We have been taken through the three affidavits filed in this Court by the Principal Secretary, Education Department, and as observed in the order of this Court on 24-4-2001 they seem to be more of argumentative nature, than the presentation of a specific and relevant fact or criteria based upon any concrete basis of fact and the affidavit filed thereafter also, except being in the nature of a mere assertion does not contain that relevant detail for this Court to take a different view of facts than the one consistently arrived at by the learned Single Judge as well as the Division Bench of the High Court. In that view of the matter and taking into account also to some extent the other factor such as the injustice that may result in denying the benefits of the order to merely about 80 or so of the teachers in the composite colleges in question imparting education for degree and PUC courses, we do not consider it appropriate to disturb the findings on this aspect as to the coverage of such teachers in composite colleges, for purposes of revised UGC scales of pay to them.
37. Also held in State of Punjab vs. Amar Nath Goyal, 2005 SCC (L&S) 910 that the final recommendations of the Pay Commission are not binding but had to be accepted by the Government and to implement it in accordance with law.
38. With the above trite position of law, what is discerned from the cumulative reading of the binding precedent and the ratio as derived therein is that if a final recommendation is made by the expert body like the Pay Commission and once it is accepted, the benefit of Pay Commission on the doctrine of equal pay for equal work cannot be denied to the categories covered under the recommendations. Any denial on flimsy, arbitrary and irrelevant grounds not only violates the directive principles of State policy but it will also be malafide and violative of Article 14 of the Constitution of India.
39. The concept of parity in law has a longer history. Though equal pay for equal work may not be a fundamental right guaranteed to the government servants but it is a directive principle of State policy. Any act, which goes against the principle of equality laid down under Article 14 of the Constitution of India, any differential treatment on the ground of belonging to different departments without a reasonable differential criteria having reasonable nexus with the object sought to be achieved such an act of the government being unconstitutional cannot be sustained in judicial review.
40. In Randhir Singh vs. Union of India, AIR 1982 (SC) 879, following dicta has been laid down:-
No doubt, equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies and not for the courts, but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
xxxx xxxx xxxx xxxx
It is well known that there can be and there are different grades in a service, with varying qualifications for, entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them, AIR 1962 SC 1139, Distinguished.
It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitution goal.
Construing Articles 14 and 16 in the light of the Preamble and Art. 39 (d), we are of the view that the principle 'Equal pay for Equal work' is deducible from those Articles and my be properly applied to cases of unequal ''scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
41. In Mewa Ram Kanojia vs. All India Institute of Medical Sciences, ATJ 1989 (1) SC 654, the following observations have been made:-
The doctrine of "Equal Pay for Equal Work" is not expressly declared a fundamental right under the Constitution. But Article 39(d) read with Articles 14 and 16 the Constitution declares the constitutional goal enjoining the State not to deny any person equality before law in matters relating to employment including the scales of pay. Article 39(d) read with Articles 14 and 16 of the Constitution enjoins the State that where all things are equal and person holding identical -posts, performing identical and similar duties under the same employer should not be treated differently in the matter of their pay. The doctrine of `Equal Pay for Equal Work' is not abstract one, it is open to the State to prescribe different scales of pay for different posts having regard to educational qualifications, duties and responsibilities of the post. The principle of 'Equal Pay for Equal Work' is applicable when employees holding the same rank perform similar functions and discharge similar duties and responsibilities are treated differently. The application of doctrine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay.
Tinkering with pay scales is not generally a matter in the purview of the courts. This has a domino effect and several equations are disturbed. It also leads to additional expenditure. Therefore, we should be wary of venturing into this field of activity and refrain from disturbing these delicate relationships. However, if the State itself disturbs these clear equations on extraneous considerations, the court can interfere.
42. No doubt in Hiramony Sen (supra), it has been ruled that to increase the pay scale is entirely to the Government and the judiciary must exercise self-restraint and not encroach into the executive or legislative domain. It is also held in S.C. Chandra (supra) that fixation of pay and determination of parity being a complex matter should be left to the expert body and grant of pay parity may result in adverse consequence. However, in Dinesh K.K. (supra), the following observations have been made:-
9. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors. , a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India . Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right.
10. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association . Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.
11. In State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors. , a three-Judge Bench of this Court, dealing with the same principle, opined that principle of equal pay is dependent upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities do make a difference. It was held that the judgment of administrative authorities, concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
12. In State of Haryana & Anr. Vs. Tilak Raj & Ors. , it has been observed that the principle of equal pay for equal work is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organizations or even in the same organisation. It has been reiterated that this is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. It has been emphasized that the problem about equal pay cannot be translated into a mathematical formula.
13. Yet again in a recent decision in State of Haryana & Ors. Vs. Charanjit Singh & Ors. , a Bench of three learned Judges, while affirming the view taken by this Court in the cases of State of Haryana & Ors. Vs. Jasmer Singh & Ors. , Tilak Raj (supra), Orissa University of Agriculture & Technlogy & Anr. Vs. Manoj K. Mohanty and Government of W.B. Vs. Tarun Roy & Ors. has reiterated that the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of equal pay for equal work has no mathematical application in every case, it has been held that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who are left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of equal pay for equal work, it has been held that since the said principle requires consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the Court should not interfere till it is satisfied that the necessary material on the basis whereof the claim is made is available on record with necessary proof and that there is equal work and equal quality and all other relevant factors are fulfilled.
20. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the apparent disparity and anomaly in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in pre-revised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution.
43. In K.T. Veerappa (supra) as regards discrimination in the pay revision, following observations have been made:-
13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.
14. In S.B. Vohra case(2004) 2 SCC 150 : 2004 SCC (L&S) 363 this Court dealing with the fixation of pay scales of officers of the High Court of Delhi (Assistant Registrars) has held that the fixation of pay scale is within the exclusive domain of the Chief Justice, subject to approval of President/Governor of the State and the matter should either be examined by an expert body or in its absence by the Chief Justice and the Central/State Government should attend to the suggestions of the Chief Justice with reasonable promptitude so as to satisfy the test of Article 14 of the Constitution of India. Further, it is observed that financial implications vis-a-vis effect of grant of a particular scale of pay may not always be a sufficient reason and differences should be mutually discussed and tried to be solved.
15. In the present cases, in compliance with the judgment of the Division Bench of the High Court, the Vice-Chancellor of the Mysore University constituted a committee headed by Shri Hiriyanna. The said Committee, in its report dated 8-6-1991, has recorded the observations that the details of the pay scales assigned by the Muddappa Committee, the Manjunath Committee, the Acharya Committee, the Gopala Reddy Committee as also the pay scales given effect to from 1-1-1977 and the claims of the appellants, on individual basis, could perhaps have been attended to by the University itself after the Muddappa Committee made its recommendations. The Vice-Chancellor and the Registrar of the Mysore University, while appearing before the Division Bench of the Karnataka High Court in CCs Nos. 84 to 103 of 1992 in compliance with the order dated 16-4-1992 had brought to the notice of the Bench that the direction issued by the learned Single Judge in WAs Nos. 2220-39 of 1989 dated 18-4-1990 and 29-1-1991 had already been complied with and arrears of salary had been paid to the employees of the University, who filed the said writ petitions. Thereafter, the respondent University submitted certain proposed amendments to the statute and the same were sent to the State Government for approval. The State Government, for the reasons best known to it, till date has not been able to state any good reason as to why the amendment of the statute as proposed by the University in regard to the fixation of the pay scales of its employees could not have been approved by the competent authority. The Vice-Chancellor in its affidavit dated 25-1-2000 filed in Writ Appeals Nos. 7007-55 of 1999 has categorically stated that the respondent University, in its meeting held on 17-4-1999, decided to comply with the orders of the Court and also to extend the benefit of the revised pay scale with effect from 1-1-1977 to those employees who are eligible for such benefits and have not gone to the Court. This decision was taken on the representation submitted by the appellants.
44. Further in G.S. Uppal (supra) on the pay parity involving the cardinal principle of equal pay for equal work, the following observations have been made by the Apex Court:-
22. It is not in dispute that a deputationist holds the post in a particular cadre office for the duration he remains on deputation and is a part of that cadre. No material has been placed on record by the appellants to show that the deputationists are appointed against only certain particular posts or that they cannot be posted or transferred to the posts held by the respondents. In fact, it is an admitted position that the posts are mutually inter-changeable. In this situation, it is reasonable to infer that a deputationist performs the same duties as those performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation.
24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.
45. In Rajesh Mohan Shukla (supra), it is held that there is no justification for denial of equal pay for equal work when the only difference is the source of recruitment. The High Court of Delhi in W.P.(C) No. 13106/2005 in Union of India & Ors. vs. Mohinder Singh & Ors., decided on 18.05.2006, upheld the decision of the Tribunal on the basis of principle of equal pay for equal work and benefits have been granted to Draftsmen Grade-III.
46. In Mohinder Pal Singh (supra), the claim of Stenographer Grade-C in Ministry of External Affairs at par with CSSS has been turned down on the basis of 5th CPC finding out difference in the volume of work.
47. With the above backdrop of the trite position of law, the issues raised are to be examined.
DISCUSSION AND CONCLUSION:
48. The word historical has been defined in Concise Oxford Dictionary, Tenth Edition (Revised) as belonging to or set in the past. Historical parity is the parity or equality maintained in the context of the present Original Application between the pay scales of PSs/SOs with that of their counterparts in CSS/CSSS in the wake of the recommendations by several Pay Commissions. A historical parity would be when it is established as an obligation to one who is claiming parity of pay scales with the class or category had been situated in the past at par in the equivalent pay scale with the counterparts with whom such parity is claimed. It is no more res integra as transpired from the Chart, which is not disputed by the respondents, that earlier in the cadre of Stenographers Grade C /Assistants in the Fourth Central Pay Commission, the scale of pay was Rs.1400-2600, which had been upgraded in case of CSS/CSSS to Rs. 1640-2900 by issuing an O.M. but it has not been effected in CAT. The litigation resulted in an order passed by the DOP&T in pursuance of the direction of the Tribunal in OA No. 2865/1991 and CCP No. 262/1993 wherein it has been decided to grant pay scale to the counterparts CAT employees of Rs. 1640-2900 even without amending the recruitment rules. However, subsequently the rules were amended. In S.K. Sareen vs. Union of India & Ors. (OA No. 777/1992 decided on 20.12.1999), the pay scale of Rs.3000-4500 from 01.01.1986 was sought on the principle of equal pay for equal work at par with their counterparts in CSSS. When order was affirmed by the Delhi High Court on 19.04.2002 and SLP against which was also turned down, in CP 405/2003, an order was passed on 09.02.2005 upgrading the 16 posts of Private Secretaries to Principal Private Secretaries and one post of PPS to Senior Principal Private Secretary in the relevant pay scales at par with CSSS. This clearly shows that the parity in the pay scale has been maintained in the CAT relating to two categories upto the stage of Fourth CPC.
49. The only anomaly which had occurred on account of grant of pay scale of Rs. 1640-2900 has been set right on a judicial dicta which holds the field and was complied with.
50. In Fifth CPC the PSs/SOs were recommended the pay scale of Rs. 6500-10500 and also the counterparts in CSS/CSSS. However, the NFSG scale of Rs. 8000-13500 to the merged grade of A & B of PSs of CSSS has been allowed notionally w.e.f. 01.01.1996 and actually w.e.f. 03.10.2003. The applicants have raised this issue before the Ernakulam Bench where the CP converted into Misc. Application, an affidavit filed by the Government clearly indicates that the Commission has examined and recommended the issue of parity of employees of CAT with their counterparts in CSS/CSSS cadre in para 7.32.15 of the Report of the 6th Pay Commission. It is further reiterated on acceptance by the DOP&T vide letter dated 27.03.2008 where the parity, recommended by the 6th CPC in para 3.1.9 and 7.32.15 of the Report, with counterparts in CSS/CSSS has been accepted.
51. In the above view of the matter regarding the parity of pay scale in 5th CPC in the wake of an admitted fact of the historical parity between the CSS/CSSS with counterparts in CAT, a final decision is awaited for grant of NFSG grade of Rs.8000-13500 notionally and actually to the employees of the Tribunal. However, as this is not the issue before us, except reiterating in law their demand, the issue of historical parity between the PSs/SOs of CAT and on the other hand SOs/PSs of CSS/CSSS is no more res integra and once accepted by the government and recommended by 6th CPC, the aforesaid recommendations contained in paragraphs 3.1.9 and 7.32.15 having been accepted by the Government, the stand now taken by the respondents that what is applicable to the applicants in the present OA is para 3.1.14 of the recommendations of the 6th CPC is absolutely misconceived. It is pertinent to note that this para applies to non-secretariat offices and to those for whom there is no historical parity with CSS/CSSS and in favour of whom a criteria of recommendations has not been laid down in the 6th CPC recommendations. On a juxtaposition, 6th CPC while making its recommendations in para 7.32.15 as to cadre structure of higher pay scale in CAT reiterated that Assistants and Stenographers in CAT have demanded pay scales at par with their counterparts in CSS/CSSS and as the Commission has already recommended parity between the similarly placed posts in field offices and Secretariat, no separate recommendation has been made. The only logical and rationale inference to be drawn is that whatever has been recommended in para 3.1.9 is to be applied mutatis mutandis to the employees of the CAT on the condition precedent being fulfilled, which is establishment of historical parity with CSS/CSSS. The recommendations contained in para 3.1.14 of 6th CPC Report where the field organizations and non-secretariat organizations have been recommended the pay scale are not at all applicable to the employees of the CAT, as a specific recommendation made in paragraph 7.32.15 Commission having recommended parity between the similarly placed posts in field offices and secretariat the instant demand has been fulfilled. It is trite that when there is a specific recommendation made as transpired from para 3.1.9 as to parity with pay scale of CSS/CSSS structure the asterisk (*) clearly shows that even to the non-secretariat offices and organizations being carved out as an exception to the recommendations contained in para 3.1.14 is that those organizations which are not exhaustive but includes departments and organization which have had a historical parity the pay scale would be at par with CSS/CSSS. It is trite that under the principle of interpretation that in case of interpretation of a service rule, if two views are possible then the rule has to be interpreted with the practice followed in the department for long time as held in Shailendra Dania & Ors. vs. S.P. Dubey & Ors., 2007 (2) SCC (L&S) 202, a marginal note with a provision is an integral part of it and being an exception in the instant case as an asterisk (*) to para 3.1.9, the same has applicability to all field offices and non-secretariat organizations, all departments where there has been historical parity with the pay scale of their counterparts in CSS/CSSS. We cannot read para 3.1.14 in isolation of para 3.1.9 and 7.32.15 where both the recommendations having been accepted by the Government, only applying para 3.1.14 to the exclusion of 3.1.9 would amount to approbating and reprobating simultaneously, as a conscious and well taken decision when transformed into an affidavit of the Government before the Ernakulam Bench, an admission to acceptance of parity and acceptance also of established parity as a historical background leaves no doubt in our mind that there has been a historical parity of SOs/PSs in CAT with their counterparts in CSS/CSSS. They cannot now, as a contradictory stand, deny the same as it would not only be unfair but also is a misuse of their discretionary power which is to be exercised by an administrative authority judiciously after balancing all the relevant factors as ruled by the Apex Court in Union of India vs. Kuldip Singh, 2004 (2) SCC 590. A discretion vested in the administrative authority is neither unfettered nor absolute. It is to be exercised in consonance with the rights of a government employee and Constitution of India. A consideration worth in law is one, which thinks over on active application of mind all the relevant consideration and factors as ruled by the Apex Court in Bhikubhai Patel (supra). As a model employer just to deprive the applicants their rights and legitimate dues without any justifiable reasons and on misreading of their CSSS Revised Pay Rules, 2008, irrelevant considerations have been grounded to deprive the applicants the requisite pay scales on established historical parity with those of their counterparts in CSS/CSSS. Learned counsel for the respondents relied upon the decision of High Court in Mohinder Pal Singh (supra) and in M.V.R. Rao (supra) by a Larger Bench of this Tribunal. In this regard it is pertinent to note that this issue of parity of CAT employees with CSS/CSSS has been dealt with by this Tribunal in S.K. Sareen s case (supra) which, on affirmation from the High Court, and also rejection of SLP, on implementation by the respondents not only attained finality but also is an admission to the effect by the respondents that the SOs/PSs of CAT are maintaining historical parity with those of their counterparts in CSS/CSSS. It is worthwhile to note that there is even a finding recorded that the duties and functional requirements of the CAT employees are more onerous than their counterparts in CSS/CSSS, which has not been overturned by any dicta. A judicial dicta when holds the field and the arena in which it operates, it is impermissible in law to the administrative authorities to infiltrate it as ruled by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327. The Apex Court has also ruled in Dhampur Sugar Mill v. State of Uttranchal, 2007 (11) SCALE 374 that when a public authority acts with oblique motive, bad faith or takes into account extraneous or irrelevant consideration, the exercise has to be held as not in accordance with law.
52. In the above view of the matter the contention that the Government has not accepted the claim of the applicants as to the parity with CSS/CSSS is founded on a ground and justification, which has been misconceived by them and wrongly applied. Such a consideration cannot be a consideration worth in law.
53. In the matter of pay scale equation though the prerogative lies with the Government but any action taken especially when such a recommendation covers the claim of the applicants and accepted by the Government, no reasonable justification has come forth, which would deprive the applicants the grant of identical pay scale. Had there been a case where recommendations having been accepted by the Government in its discretion, the applicants would have no indefeasible right to claim the pay scale. One of the points raised is financial constraint in accord of benefits, which as a trite law, has not been found to be a valid defence by the Government, as a right of an employee cannot be defeated on this technical issue. In the matter of parity of pay scale, financial constraint cannot be a defence as ruled by the Apex Court in Union of India vs. Atonomic Engery Workers Staff Union, 2005 (1) ATJ (HC) (Bombay) 92.
54. As regards opening of flood gate litigation and administrative chaos, it is held to be no ground to take away the valuable right of a person under the Constitution by the Apex Court in Coal India Ltd vs. Saroj Kumar Mishra, 2008 (2) SCC (L&S) 321. In G.S. Uppal (supra), financial constraints have not been found to be good ground on established implementation of doctrine of equal pay for equal work.
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.
58. Consequently, MA for joining together is also allowed.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
/Sunil/
PRINCIPAL BENCH, NEW DELHI
O.A. No.164/2009
MA No.141/2009
New Delhi this the 19th day of February, 2009
Hon ble Mr. Shanker Raju, Member (J)
Hon ble Dr. Veena Chhotray, Member (A)
1. S.R. Dheer,
S/o late Shri C.L. Dheer,
R/o RZ G-123B,
Mahavir Enclave,
New Delhi-110045.
2. Rakesh Sareen,
S/o Shri S.K. Sareen,
R/o B-1/494, Janakpuri,
New Delhi-110 029.
3. Sanjeev Kumar,
S/o Shri V.D. Kaushik,
R/o H.No. 266, Shahbad Mohd.Pur,
New Delhi-110 061.
4. Anand Singh,
S/o Sh. Bishan Singh,
R/o H.No. 243, Sec.3,
Sadiq Nagar,
New Delhi 110 049.
5. N.S.N. Rao,
S/o Shri N.Kameshwar Rao,
R/o H.No. F-354, Sec.9,
Vijay Nagar,
Ghaziabad.
6. Naresh Ahuja,
S/o Shri Gopal Dass,
R/o H.No. 376,
Gali No. 12, Madanpuri,
Gurgaon 122 001 (Haryana).
7. Dinesh Mishra,
S/o Shri J.P. Mishra,
R/o 783, Timarpur,
Delhi.
8. Smt. Vinita Virmani,
W/o Shri Subhash Virmani,
R/o 150, Bannu Enclave,
Saraswati Vihar, Pitampura,
New Delhi 110 034.
9. Santosh Kumar
S/o Shri Shanti Sarup,
R/o H.No. 1708-A/4,
Govindpuri Extension,
Kalkaji, New Delhi-19.
(Applicant nos. 1 to 9 are working as Private Secretary in Central Administrative Tribunal, Principal Bench, New Delhi).
10. Anjani Kumar Jha,
S/o Sh. U.C. Jha,
R/o 583, R.K. Puram,
Sector 4,
New Delhi 110 022.
11. L.R. Sharda,
S/o late Sh. M.L. Sharda,
R/o H-167, Rama Krishana Vihar,
Plot No. 29, 8th Avenue, IP Extn..,
Delhi 110 092.
12. V.K. Srivastava,
s/o late Sh. G.N. Sahai,
R/o F-800, Timarpur,
Delhi.
13. B.K. Juneja,
S/o Sh. K.L. Juneja,
R/o A-586, Sector 9,
New Vijay Nagar,
Ghaziabad (UP).
14. R.C. Pasbola,
S/o late Sh. D.N. Pasbola,
R/o E-5/11, FF Malviya Nagar,
New Delhi 110 017.
15. S. Rangarajan,
R/o E-102, Nanakpura,
Moti Bagh-II,
New Delhi 110 021.
16. Mahendra Kumar Goyal,
S/o late Sh. Rameshwar Dass,
R/o G-22/142, Sector 7,
Rohini, Delhi 110 085.
17. Ram Chander
S/o late Sh. Mohan Lal Sharma,
RZ 46/165, Gali No.7,
Durga Park, P.O. Palam,
New Delhi 110 045.
18. Vijay Kumar
S/o late Sh. Ganpat Rai,
115, Himayun Pur,
Safdarjung Enclave,
New Delhi.
19. Surat Singh
S/o Sh. Nain Singh,
R/o C-1/61, Sector 17,
Rohini, Delhi 110 085.
20. S.P.S. Rawat,
S/o Sh. D.S. Rawat,
R/o 244/94-C, School Block,
Mandawali, Delhi 110 092.
21. Dinesh Chander Singh
S/o late Sh. K.S. Rawat,
R/o RZ-38, Dabri Ext.,
Post Office Palam,
New Delhi 110 045.
22. K.K. Pukhral,
S/o late Shri J.S. Pukhral,
R/o K-10, 2nd Floor,
Khirki Extension, Malviya Nagar,
New Delhi-110017.
(Applicant Nos. 10 to 22 are working as Section Officers in Central Administrative Tribunal, Principal Bench, New Delhi).
-Applicants.
(By Shri G.D. Gupta, Senior Counsel alongwith Shri S.K. Sinha, Advocate)
-Versus-
1. Union of India represented through the Secretary to Government of India, Department of Expenditure, Ministry of Finance, North Block, New Delhi 110 001.
2. The Secretary to Government, Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, North Block, New Delhi.
(By Advocate Shri A.K. Bhardwaj)
3. The Principal Registrar, Central Administrative Tribunal, Principal Bench, New Delhi. -Respondents.
(By Advocate Shri D.S. Mahendru)
O R D E R
Mr. Shanker Raju, Hon ble Member (J):
Equality in law is a Fundamental Right guaranteed to all citizens of this country under Article 14 of the Constitution of India. Any invidious discrimination, which does not pass the twin tests of reasonableness under the Constitution of India, shall amount to treating the equals differently and is a hostile discrimination not approved in law by the Constitution Bench of the Hon ble Supreme Court in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145.
2. No doubt, in service jurisprudence, legitimate expectation is a cardinal principle though not in substantive law to operate both in procedural and substantive matters, as ruled by the Apex Court in Jitender Kumar v. State of Haryana, 2008 (1) SCC (L&S) 428, as also ruled in M/s Sethi Auto Service Station v. D.D.A, 2008 (13) SCALE 783.
3. In Official Liquidator v. Dayanand, 2008 (10) SCC 1, the Apex Court has held that though not being a right the expectation should be legitimate, reasonable and valid and one has a legitimate expectation of a particular treatment if by any representation or promise made by the authorities expressly or impliedly gives room for such expectation in normal course.
4. In the administrative arena, the orders passed are to be tested on the touchstone of reasonableness, as ruled by the Apex Court in Noida Enterprises Association v. Noida Authority, 2008 (1) SCC (L&S) 672. Equal pay for equal work though may not be a Fundamental Right guaranteed to a government servant, yet an abstract doctrine in consonance with the principle of equality enshrined under Article 14 of the Constitution of India, a hostile discrimination, which is illogical, irrational and illegal and in a case where there is no intelligible differentia which has a reasonable nexus with the object sought to be achieved, similarly placed cannot be invidiously discriminated in the matter of pay scale.
5. Though as a trite law equation of pay primarily concerns the executive Government and expert body, but where all the functional requirements being identical, irrelevant consideration to treat differently in the matter of pay is an exception carved out for interference in judicial review in the matter of equal pay for equal work .
6. With the above backdrop of trite law, this OA has been filed by a group of Private Secretaries and Section Officers working in the Principal Bench of the Central Administrative Tribunal. Though a challenge has been made to orders passed by the respondent No. 2, on 11.9.2008 and 23.10.2008, addressed to respondent No.3, whereby it has been communicated that till a final decision is taken by the Ministry of Finance and necessary amendments are carried out in the recruitment rules, they may be accorded the replacement scales as approved consequent upon acceptance of recommendations of the VI Central Pay Commission, the grievance of applicants is that despite a historical parity being maintained since inception of the Tribunal in 1985 with their counterparts in Central Secretariat Service/Central Secretariat Stenographers Service (hereinafter referred to as CSS/CSSS), they have been deprived of the Grade Pay of Rs.4800/- in Pay Band-2 and on completion of four years service, the Grade Pay of Rs.5400/- in Pay Band-3. Therefore, they have prayed for a declaration that the action of Respondent Nos. 1 and 2 is arbitrary, discriminatory, illegal and violative of Articles 14 and 16 of the Constitution, with a further declaration that PSs/SOs of the CAT have always had a historical parity with their counterparts in CSS/CSSS and are entitled to the Grade Pay of Rs.4800/- and 5400/- on completion of four years service. They have also prayed for quashing and setting aside the orders dated 11.09.2008 and 23.10.2008 and for a direction to the respondents to grant the aforesaid Grade Pay with all consequential benefits w.e.f. 1.1.2006, along with interest on delayed payment.
BRIEF FACTS:
7. Applicants are Private Secretaries (PSs) and Section Officers (SOs) working in the Principal Bench of the Central Administrative Tribunal (CAT). The Tribunal has come into being in the year 1985 when there was no distinction or difference in pay scales with their counterparts in the CSS/CSSS. The hierarchy of Central Secretariat and CAT is explained below in a tabular form:
A) CENTRAL SECRETARIAT
Sl.No.
Name of post Group/Classification 3rd CPC Scale of pay 4th CPC Scale of pay 5th CPC Scale of pay
1 Stenographer Grade D/
UDC Group C (Non-Gazetted)/
General Central Service (Ministerial) Non-Gazetted. 330-560 1200-2040 4000-6000
2 Stenographer Grade C/
Assistant Group B (Non-gazetted)
General Central Service (Ministerial) . 425-800 1400-2600
*1640-2900 5500-9000
3 Private Secretary/
Section Officer
Group B (Gazetted)/
General Central Service (Ministerial) Gazetted. 650-1200 2000-3500 6500-10500
*8000-13000/- (On Completion of four years
4 Principal Private Secretary/
Under Secretary Group A (Gazetted)/
General Central Service (Ministerial) 10000-15200
B) CENTRAL ADMINISTRATIVE TRIBUNAL
Sl.No.
Name of post Group/Classification 3rd CPC Scale of pay 4th CPC Scale of pay 5th CPC Scale of pay
1 Stenographer Grade D/
UDC Group C
(Non-Gazetted)/
General Central Service (Ministerial) Non-Gazetted. 330-560 1200-2040 4000-6000
2 Stenographer Grade C/
Assistant Group B
(Non-gazetted)
General Central Service (Ministerial) . 425-800 1400-2600
*1640-2900 5500-9000
3 Private Secretary/
Section Officer
Group B (Gazetted)/
General Central Service (Ministerial) Gazetted. 650-1200 2000-3500 6500-10500
4 Principal Private Secretary/
Deputy Registrar Group A (Gazetted)/
General Central Service (Ministerial) 10000-15200
8. From the above, it is clear that from the very inception of the Tribunal in 1985, there has been parity between the employees of the CAT with that of their counterparts in the CSS/CSSS and the only disparity, which cropped up was grant of pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade C in the Central Secretariat. Assistants and Stenographers Grade C in CAT represented to the Government for revision of their pay scale to Rs.1640-2900 from Rs.1400-2600, to bring them at par with the corresponding categories in CSS/CSSS. However, their representations were rejected, which led to filing of OA Nos. 2865/1991, 529/1992 as well as OA-178/1992 before the Principal Bench and Cuttack Bench of the Tribunal. The aforesaid OAs were allowed by the Tribunal, directing the respondents to consider grant of revised pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade C of the CAT. Resultantly, Government of India by letter No.G.26012/92-A dated 29.10.1993 granted the pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade C of the CAT w.e.f. 1.1.1992, thus bringing them at par with their counterparts in CSS/CSSS, without waiting for the formal amendment in the Rules. Thereafter vide Gazette Notification dated 25.10.1994, the recruitment rules had undergone amendment, bringing the Assistants/ Stenographers Grade C of the CAT at par with their counterparts in the CSS/CSSS, as annexed by the applicants at Annexure D (colly).
9. An OM was issued by the Department of Personnel & Training (DoP&T) granting a higher pay scale of Rs.3000-4500 to those PSs, who had rendered 8 years regular service in the grade of Rs.2000-3500 and who were attached with the Secretary level officers. Accordingly, PSs, who were attached with Hon ble Chairman/Vice-Chairmen in the CAT, made representations to the Government for granting the same pay scale to them as well on the principle of equal pay for equal work . However, their representations were rejected without any proper justification. Being aggrieved, Shri S.K. Sareen, one of the PSs, who was at the relevant time attached with the Hon ble Vice Chairman, filed OA No.777/1992, which was allowed by the Tribunal vide order dated 20.12.1999. Writ Petition (Civil) No.2500/2000 filed by the Union of India against the aforesaid decision was dismissed on 19.4.2002. Even the SLP No.1565/2003 filed by the Union of India was dismissed on 28.2.2003, affirming the decision of the Tribunal in S.K. Sareen (supra). In compliance of the aforesaid decision of the Tribunal, Government of India passed order dated 9.2.2005 (Annexure G ), revising the pay scale from Rs.2000-3500 to Rs.3000-4500 (pre-revised) and one post of Principal Private Secretary (PPS) was upgraded to the pay scale of Rs.12000-16500 from Rs.10000-15200 as Senior Principal Private Secretary and 16 posts of PSs attached to the Hon ble Vice Chairmen in CAT to Principal Private Secretary from the scale of pay of Rs.6500-10500 to Rs.10000-15200 (pre-revised), thereby again bringing the PSs of the CAT at par with their counterparts in CSSS.
10. Vide order dated 25.1.2006 (Annexure H ), the Government of India granted Non-Functional Selection Grade (NFSG) of Rs.8000-13500 to the PSs/SOs in the CSSS/CSS. Having denied the same benefit to the SOs/PSs in the CAT, some of the PSs working at Ernakulam Bench of the Tribunal filed OA No.475/2006, for grant of NFSG of Rs.8000-13500, claiming historical parity with the PSs of CSSS. The said OA was disposed of with a direction to the respondents to consider the claim of applicants, who are PSs in the Ernakulam Bench of the Tribunal, in the light of the averments made in the OA as well as the legal questions considered in the earlier judgments by the Tribunal and communicate a decision to the applicants. Non-compliance of the order led to filing of CP No.05/2007, which was, after hearing, disposed of on 6.11.2007, with a direction to the respondents to furnish the details of reference to the VI Central Pay Commission either by way of an affidavit by an officer at appropriate level or by filing the copies of the very reference, with copy to the counsel for the applicants, within a period of six weeks and the matter was converted into an execution application and directed to be listed on 2.1.2008. Thereafter, again in MA No.854/2008, a direction was issued on 28.2.2008 to the Secretary, DoP&T to personally handle the matter or at least monitor the matter and try to persuade the VI Central Pay Commission to consider the case of the applicants and other similarly situated. The Principal Registrar, CAT (respondent No.3 herein), was also directed to make available all the relevant materials to the Secretary and have due interaction with the DoP&T. Although in spite of aforesaid directions no reference was made to the Sixth Pay Commission, but, on 21.4.2008, learned senior standing counsel appearing for DoP&T & Ministry of Finance filed compliance affidavit, stating as follows:
I am the Senior Central Government Standing Counsel appearing for the respondents in the above Original Application. This statement is filed on the basis of the instructions furnished by the respondents.
2. The above Miscellaneous Application had been filed by the petitioner/Applicant alleging disobedience of the directions contained in the Annexure P-1 Order of this Honourable Tribunal in Original Application No.475 of 2006 and also such other reliefs.
3. In this connection it is pertinent to note that the Respondents had fully complied with the directions of this Honourable Tribunal in the above Original Application contained in the Order dated 3.4.2007.
4. As per the directions of this Honourable Tribunal in the order dated 28.2.2008 the respondents have fully complied with the order. The Sixth Central Pay Commission has already submitted its report to the Government in which the Commission has examined and recommended the issue of parity of employees of Central Administrative Tribunal with employees of CSS & CSSS cadre in Paragraph 7.32.25 of its recommendations. A True copy of the relevant portion of the Recommendations of the 6th Pay Commission, is produced herewith and marked as ANNEXURE R-1.
5. It is pertinent to submit that pursuant to the Order of this Honourable Tribunal in this case was, the matter was forwarded for the implementation to the Department of Personnel and Training for taking up the matter will Pay Commission. Since the report has already been submitted by the 6th Central Pay Commission to the Government, the directions of this Honourable Tribunal had been complied with.
6. On a perusal of the above facts, it can be seen that the Respondent had fully complied with the directions of this Honourable Tribunal contained in the 3.4.2007 in Original Application NO.475 of 2006 in its letter and spirit and there is no wilful negligence or laches on the part of the Respondent in implementing the order of this Honourable Tribunal within the stipulated time. The Respondent tender unconditional apology for the delay if any, caused in implementing the order of this Honourable Tribunal. Hence the above Miscellaneous Application is liable to be dismissed and this Statement may also be accepted into file as full Compliance Report.
It is pertinent to mention here that the aforesaid compliance affidavit was filed on the basis of the letter dated 27.3.2008 of the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, addressed to the Registrar, CAT, Principal Bench, which reads as follows:
I am directed to refer to your letter No.PB/4/21/06-R dated 20.3.2008 on the above subject and to say that 6th Central Pay Commission have already submitted its report/recommendations to the Government on 24.3.2008. As such, it may not be possible to make any further reference to Pay Commission.
2. However, the 6th Central Pay Commission have in para 3.1.9 and para 7.32.15 of its report (copy enclosed) relating to CAT have already recommended parity between Assistants/Section Officers/Stenographers of CSS/CSSS and similarly placed posts in field offices.
In consonance with the aforesaid authority to the effect that VI CPC has recommended the issue of parity of employees of CAT with CSSS/CSS in para 3.1.9 and para 7.32.15 of the Report, Hon ble Tribunal at Ernakulam, on 26.06.2008 gave a direction to the respondents to work out and disburse pay scale and arrears to all the PSs of the CAT on refixation of their pay. Paras-2 & 3 of the aforesaid order dated 26.6.2008, read as follows:
2. Records would reveal that the Private Secretaries of Central Administrative Tribunal (CAT) had, under the Vth Pay Commission Recommendations been treated at par with their counterparts in the CSS/CSSS Cadre and accordingly the pay scale afforded to them has been made available to the Private Secretaries of CAT as well, with effect from 01.01.1996. Again, vide Annexure R-1 to the counter statement dated 21st April 2008, filed on 16th June 2008, the VI Pay Commission has also confirmed the parity between the two. This means that there is absolutely no question of different pay scales for the posts of Private Secretaries of CSS/CSSS on the one hand and the CAT on the other. As such, when for the Private Secretaries of CSS/CSSS the Government had introduced non-functional pay scale of Rs.8000-13000/-, subject to fulfillment of certain conditions attached thereto, the same non-functional pay scale is expected to be extended to the Private Secretaries of CAT from the very same date and subject to similar conditions. Otherwise, it would amount to derailment by the Government from the finding of the Pay Commission, which is not permissible. Perhaps, the reservation of the respondents earlier, in extending the non-functional pay scale of Rs.8000-13500/- to the Private Secretaries of C.A.T. was on account of the apprehension that the VI Pay Commission may or may not confirm the parity between the two sets of Private Secretaries. Now that in clear terms, parity has been confirmed by the VI Pay Commission, there should be no impediment for the respondents to pass suitable orders extending the pay scale of Rs.8000-13500/- from the date the Private Secretaries of the Central Secretariat Services/CSSS have been granted, subject no doubt to the fulfillment of the requisite conditions attached thereto.
3. It is a matter of record that such a situation in respect of Section Officers of the CBI has also been recently set right by the Principal Bench in OA No.377/06 by its order dated 1st May, 2007, which has been upheld by the Delhi High Court in Civil Writ Petition No.7475 of 2007 and CM No.14234 of 2007 vide order dated 10th October, 2007.
In spite of the aforesaid directions of the Tribunal, Respondents have not passed any order granting the Non-Functional Selection Grade of Rs.8000-13500 to the applicants.
11. It would be relevant here to extract paras 3.1.9 and 7.32.15 from the Report of VI CPC as follows:
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 with the dispensation already available in CSS, the Section Officers in other Secretariat Offices, which have always 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.5400 on completion of four years of 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 pay scale Corresponding revised pay band and grade pay
LDC Rs.3050-4590 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 Officer Rs.7500-12000
Rs.8000-13500*
(on completion of 4 years) PB 2 of Rs.8700-34800 along with grade pay of Rs.4800
PB 2 of Rs.8700-34800 along with grade pay of Rs.5400*
(On completion of 4 years)
Under Secretary Rs.10000-15200 PB 3 of Rs.15600-39100 along with grade pay of Rs.6100
Deputy Secretary Rs.12000-16500 PB 3 of Rs.15600-29100 along with grade pay of Rs.6600
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 MES, Ministry of Parliamentary Affairs, CBC, UPSC, etc., would therefore be covered.
7.32.15 Assistants and Stenographers in Central Administrative Tribunal have demanded pay scales on par with Assistants and Stenographers in CSS/CSSS. The Commission has already recommended parity between similarly placed posts in Field Offices and Secretariat. This will address the instant demand. No separate recommendation is therefore necessary in this case.
12. Government of India vide Notification dated 29.8.2008 approved the recommendations of the 6th CPC and pay scale of SOs/PSs/equivalent in the CSS/CSSS, as specified in Section-II of Part B of CCS (Revised Pay) Rules, 2008, was admissible, according to which, the posts of SO/PS whose pay scale has been revised to Rs.7500-12000 have been placed in PB-2 with Grade Pay of Rs.4800/- and Rs.8000-13500 on completion of four years in PB-3 with Grade Pay of Rs.5400/-. The condition precedent for grant of pay scale is that those organizations, which have had a historical parity with CSS/CSSS service and other organizations like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. were also covered. In implementation of the VI CPC Report, not only in AFHQ Service but also the departments like R&AW of the Cabinet Secretariat, UPSC, CBI, CVC, etc. SOs/PSs, have also been given the NFSG w.e.f. 1.1.1996 notionally and 3.10.2003 on actual basis.
13. Despite specific, clear and unambiguous recommendations of VI CPC, which have been accepted by the Government, a letter was addressed to the Principal Registrar, CAT dated 11.9.2008 wherein Ministry of Finance s Resolution dated 29.8.2008 and Notification of even date were communicated. It has been stated that the pay of the employees of the CAT may be fixed in the replacement pay bands. However, necessary amendments will be carried out in the recruitment rules for various posts in CAT and the CAT (Staff) (Conditions of Service) Amendment Rules, 1988 separately. The pay of applicants was fixed provisionally on 12.9.2008 in the PB-2 with Grade Pay of Rs.4200/-. However, in partial modification of order dated 12.9.2008, the pay of applicants was re-fixed on 6.10.2008 and 7.10.2008 in PB-2 with Grade Pay of Rs.4800/- as per the recommendations of the VI CPC in para 3.1.9 and CCS (RP) Rules, 2008. The pay bills were prepared on the basis of these orders. However, the Pay and Accounts Officer took an objection, as a result of which, an order was passed on 23.10.2008, which decided that the issue of grant of Grade Pay to SOs/PSs of CAT at par with their counterparts in CSS/CSSS is under consideration with the Ministry of Finance. Of late, as transpired from the reply of the respondents, considering the CAT as a non-Secretariat Organization, the Ministry of Finance has taken a decision not to accord the Grade Pay to the applicants at par with CSS/CSSS and to accord the Grade Pay on the basis of the recommendations made in para 3.1.14 of the VI CPC Report.
14. However, by way of an ad interim order, respondents have been directed to grant the Grade Pay of Rs.4800/- to the applicants initially and on completion of four years service in the grade to Rs.5400/-, which has been complied with by re-fixing the pay of applicants but the arrears have not been paid. The VI CPC in its recommendation in para 7.32.15 of its Report insofar as Assistants and Stenographers who demanded parity with their counterparts has stated that as the Commission has already recommended parity between the similarly placed posts of Secretariat and Field Offices, no separate recommendation was found necessary. However, while making recommendation in para 3.1.9 insofar as CSS pay scales are concerned, which were applied to the PSs and equivalent in the services, including SOs, the Pay Bands prescribed to these employees have been mutatis mutandis applied to the counterparts with the condition precedent that they should have a historical parity. In AFHQSS, this has been applied and it also includes the departments/organizations like MEA, CVC, UPSC, and inclusive of the CAT, for which no separate recommendations were made. The extracted portion of para 3.1.9 establishes the aforesaid.
15. While accepting the recommendations, Government of India, Ministry of Finance issued Notification dated 29.8.2008. Definition clause 3 (7) provides revised pay structure in relation to any post specified in column 2 of the First Schedule means the pay band and grade pay specified against that post or the pay scale specified in column 5 & 6 thereof, unless a different revised pay band and grade pay or pay scale is notified separately for that post. Accordingly, Section I of the Notification in Part-B concerns revised pay scales for certain common categories of staff. Section Officers/PS/equivalent under the heading Office Staff in the Secretariat have been allowed PB-2 with Grade Pay of Rs.4800/- and PB-3 with Grade Pay of Rs.5400/- as per para 3.1.9 of the report and those Organizations/Services, which have had a historical parity with CSS/CSSS, have also been accorded the same. However, in Part-II in case of the office staff working in Organizations outside the Secretariat, the recommendations contained in para 3.1.14 have been applied. Neither in the cadre of PS nor SO, the hierarchy shown exists in the CAT, which demonstrates non-applicability of the aforesaid recommendations in para 3.1.14 insofar as CAT and its employees are concerned, for which the recommendations, as referred to ibid would apply.
ISSUES:
16. For proper adjudication of the case, the following issues may be framed:
i) Whether the CAT has jurisdiction in judicial review to interfere in the matter concerning parity of pay on wrong fixation of pay by the Government, pursuant to the recommendations by the expert body like Pay Commission?
ii) Whether the PSs/SOs in CAT have had historical parity with their counterparts in CSSS/CSS?
Whether the decision taken by the Ministry of Finance to apply para 3.1.14 of the recommendations as accepted is legally justifiable?
ARGUMENTS:
17. Learned Senior Counsel Shri G.D. Gupta along with Shri S.K. Sinha, appearing for the applicants would contend that insofar as preliminary objections are concerned, as the impugned orders passed though may be a communication between the DoP&T and respondent No.3, yet its implementation has given rise to filing of the O.A. because of wrong application of accepted recommendations of VI CPC for grant of correct Pay Band structure and pay scales to the applicants. As such a challenge when made on the basis of the illegality, such a challenge is maintainable under law.
18. As regards merging of two categories of employees in single OA, it is stated by the learned Senior Counsel that though the SOs/PSs belong to two different categories but the pay band recommended and principle on which it is recommended, being identical in all respects, the cause of action and the reliefs prayed for also being identical, there is no mis-joinder of parties.
19. As regards interference of the Tribunal in fixation of pay scale, it is stated that once the accepted recommendations have not been implemented without any justifiable basis and the consideration by Ministry of Finance to the recommendations of VI CPC on acceptance is irrelevant, without any basis and logical reasoning, a case of malafide on violation of Articles 14 and 16 of the Constitution of India is writ large on the face of it, as such the grievance of the applicants can be agitated before the Tribunal in accordance with law. To substantiate, learned Senior Counsel has relied upon the following case laws:
Bhikubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., 2008 (4) SCC 144;
K.T. Veerappa & Ors. v. State of Karnataka & Ors., 2006 (4) SCALE 293;
Haryana State Minor Irrigation Tubewells Corporation v. G.S. Uppal & Ors., 2008 (6) SCALE page 44;
Official Liquidator v. Daya Nand & Ors. (2008 (10) SCC page 1;
Union of India v. Mohinder Singh (2008 (1) SLJ HC (Delhi) D.B. page 131;
Union of India & Ors. v. Dineshan K.K. (2008 (1) SCALE 74);
Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & Ors. (2007 (9) SCC page 230).
20. Learned counsel would contend that right from Third Central Pay Commission, once there has been a parity of applicants with their counterparts in CSS/CSSS, which is recommended on acceptance by the VI CPC in para 7.32.15 and 3.1.9, having been accepted by the Government under the CCS (RP) Rules, 2008, denial of pay scale as recommended would infringe Article 39 (d) of the Constitution of India and would amount to infringement to the constitutional doctrine of equal pay for equal work .
21. Learned Senior Counsel would also contend that once the parity between the Assistants/Stenographers Grade `C as also Private Secretaries of CAT and CSS/CSSS had already been established and affirmed upto the level of the Hon ble Supreme Court, any decision arrived at differently by the respondents on administrative side would amount to infiltrate into an arena occupied by judicial pronouncements, which cannot be countenanced in law.
22. Learned counsel would further contend that insofar as applicability of para 3.1.14 is concerned, the same does not apply to the employees of CAT and as conscious of the demand of the CAT staff, including PSs and SOs cadre once in view of the historical parity in the past, no separate recommendations have been made. Para 3.1.9 covers the claim of applicants and once this has been accepted and the condition precedent is satisfied, denial of correct fixation of pay scale is not apt in law.
23. Learned counsel would lastly contend that earlier also even without amending the recruitment rules, the pay scale at par with CSS/CSSS to Assistants/Stenographers Grade C was accorded, and the same methodology should have been adopted by the respondents and being a model employer when not done so, it is a case of arbitrariness and non-application of mind.
24. In the rejoinder, applicants have cited a decision of the Tribunal in OA-377/2006, decided on 1.5.2007, whereby the NFSG has been accorded to the OS of CBI, which has been affirmed by the Hon ble High Court in WP (C) No.7475/2007 & CM No.14234/2007 in Union of India & Ors. v. S.C. Karmakar & Ors., decided on 10.10.2007. The Tribunal in OA 645/2007 has also issued a direction, on 19.08.2008 for grant of NFSG to the SOs in R&AW of the Cabinet Secretariat. The Government has implemented this order, which is evident from the order-dated 19.01.2009. Even in Armed Forces Headquarters, Non-Functional Selection Grade of Rs.8000-13500 has been accorded, vide order dated 25.09.2008 (Annexure RJ-3). It may be relevant to state here that Non-Functional Selection Grade was earlier restricted only to SOs/PSs of the CSS/CSSS, which has now been extended to SOs/PSs of other Organizations/Departments as well. This, according to the applicants, is an invidious discrimination.
25. Learned Senior Counsel would also contend that once before the Ernakulam Bench there has been admission to the effect that VI CPC has recommended the issue of parity of employees of CAT with their counterparts in CSS/CSSS, the recommendation is deemed to be accepted and as such Part B of CCS (RP) Rules, 2008 substantiates the aforesaid plea.
26. Learned counsel would contend that once the parity has been accepted, now taking a somersault and a contradictory stand would amount to approbating and reprobating simultaneously, which is impermissible in law.
27. On the other hand, Respondent No.3, i.e., Principal Registrar, CAT also filed a reply and represented through learned counsel Shri D.S. Mahendru. They have not controverted the historical parity and accepted the plea of applicants for grant of NFSG to them at par with CSS/CSSS. It is also admitted that in the wake of an advice by DoP&T, they had allowed Grade Pay of SOs/PSs of Rs.4800 in PB-2 and on completion of four years service Grade pay of Rs.5400 in PB-3, but as the PAO had not cleared the bills on the advice of other official respondents, the same was withdrawn. In a way, the case of applicants has been fully supported by respondent No.3.
28. Respondent Nos. 1 and 2 are represented by Shri A.K. Bhardwaj, the learned Standing Counsel. Their preliminary objection is that the orders impugned are inter-departmental communications, which do not fall within the definition of orders under Section 19 of the Administrative Tribunals Act, 1985. It is also stated that two different categories have been clubbed together in the OA, which amounts to non-joinder. It is also stated that fixation of pay scale for the employees is the prerogative of Government and cannot be interfered with by this Tribunal. The decisions in Hiramony Sen v. Union of India, Civil Appeal No.7232 of 2003, Union of India v. Tarti Ranjan Das, 2004 (1) SCSLJ 47 and S.C. Chandra & Ors. v. State of Jharkhand & Ors., JT 2007 (1) SC 272 have been relied upon.
29. Learned counsel would also rely upon the decision of the Delhi High Court in CWP No.102/2001 Mohinder Pal Singh & Ors. v. Union of India & Ors, decided on 4.2.2002 whereby in the wake of Customs and Excise Stenographers, their request for bringing them at par with CSSS was turned down. Also relied upon is a decision of the Larger Bench of this Tribunal in M.V.R. Rao and Ors. etc. etc. v. Union of India & Ors., 2002-2003 ATFBJ 260, to contend that the claim of Stenographers and Assistants of subordinate and attached offices of Government of India in the pay scale of Rs.1640-2900 at par with their counterparts in CSSS has been turned down.
30. Learned counsel would contend that specific pay scale recommended by VI CPC in case of office staff working in the non-Secretariat Organization is as per para 3.1.14 of the Report. On implementation, the Government modified the recommendations of the VI CPC as to NFSG to be granted to the SOs/PSs of CSS/CSSS. At the same time, no modification was made to the recommendations relating to AOs and Senior Private Secretaries in the non-Secretariat Organizations.
31. Learned counsel would contend that VI CPC recommended the upgraded pay scale of Rs.7500-12000 (pre-revised) and NFSG Rs.8000-13500 after four years to the SOs/PSs in all Secretariat offices, including CSS/non-participating Ministries but as CAT is a non-Secretariat Organization, the pay of applicants is to be fixed differently.
32. Lastly, it is stated that the recommendations as to grant of parity with CSS has not been accepted by the Ministry of Finance.
33. In the rejoinder, reiteration of the claim of applicants has been made by the learned Senior Counsel.
34. We have carefully considered the rival contentions of the parties and perused the material on record.
CASE-LAWS:
35. Fixation and grant of pay scales is the prerogative of executive and are left to the expert body like Pay commission. Any recommendations made by the Pay Commission are subject to acceptance or rejection. Unless the Government has accepted the recommendations of Pay Commission, Court cannot proceed to direct the Government to accept and apply in a particular case as held by the Apex Court in Union of India vs. Arun Jyoti Kundu, 2007 (2) SCC (L&S) 695.
36. In Tarit Ranjan Das (supra) with regard to Pay Commission conclusion and the jurisdiction of the Court in judicial review, it is held that for the Court it is not open to sit in judgment as an appeal over the conclusion of the Commission. Also held by a three Judge Bench of the Apex Court in M. P. Rural Agriculture Extension Association vs. State of M.P., 2004 SCC (L&S) 667 that Article 14 does not forbid reasonable classification and the Court cannot prescribe equal scales of pay for different class of employees and when recommendations are made by a Pay Commission where the evaluation of job has been made would not be interfered with to issue any writ in the nature of mandamus. In State of Karnataka & Ors. vs. N. Parameshwarappa & Ors., 2005 SCC (L&S) 120, with the following observations, it is ruled that the manner of differentiation sought to be made by the Government for denying the benefit of revised pay scales when not rested on any firm or definite legal stand is not tenable:-
7. We have carefully considered the submissions made on either side. In our view, the approach, the method of dealing and the manner of differentiation sought to be made by the authorities of the Government for denying the benefit of the revised scales of pay to the respondent category of teachers alone does not seem to rest on any firm or definite legal stand. The benefit of coverage is found extended to all the teachers in first-grade degree colleges, also called as composite colleges and merely because such colleges have been permitted to have pre-university courses also, the teachers should not be discriminated merely on the ground as to which teacher is assigned, at a particular point of time to teach which class of students, though individual entitlement of each of the teachers may depend upon the fulfilment of other requirements stipulated therefor. This is obvious, in our view, from the omission of the State to bring forth positively and definite factual aspect for such differential treatment not only before the High Court but also in this Court which necessitated this Court on 16-1-2001, 24-4-2001 and 26-7-2001 to issue directions calling for disclosure of the specific stand and statement of facts to have an effective adjudication of the issue. We have been taken through the three affidavits filed in this Court by the Principal Secretary, Education Department, and as observed in the order of this Court on 24-4-2001 they seem to be more of argumentative nature, than the presentation of a specific and relevant fact or criteria based upon any concrete basis of fact and the affidavit filed thereafter also, except being in the nature of a mere assertion does not contain that relevant detail for this Court to take a different view of facts than the one consistently arrived at by the learned Single Judge as well as the Division Bench of the High Court. In that view of the matter and taking into account also to some extent the other factor such as the injustice that may result in denying the benefits of the order to merely about 80 or so of the teachers in the composite colleges in question imparting education for degree and PUC courses, we do not consider it appropriate to disturb the findings on this aspect as to the coverage of such teachers in composite colleges, for purposes of revised UGC scales of pay to them.
37. Also held in State of Punjab vs. Amar Nath Goyal, 2005 SCC (L&S) 910 that the final recommendations of the Pay Commission are not binding but had to be accepted by the Government and to implement it in accordance with law.
38. With the above trite position of law, what is discerned from the cumulative reading of the binding precedent and the ratio as derived therein is that if a final recommendation is made by the expert body like the Pay Commission and once it is accepted, the benefit of Pay Commission on the doctrine of equal pay for equal work cannot be denied to the categories covered under the recommendations. Any denial on flimsy, arbitrary and irrelevant grounds not only violates the directive principles of State policy but it will also be malafide and violative of Article 14 of the Constitution of India.
39. The concept of parity in law has a longer history. Though equal pay for equal work may not be a fundamental right guaranteed to the government servants but it is a directive principle of State policy. Any act, which goes against the principle of equality laid down under Article 14 of the Constitution of India, any differential treatment on the ground of belonging to different departments without a reasonable differential criteria having reasonable nexus with the object sought to be achieved such an act of the government being unconstitutional cannot be sustained in judicial review.
40. In Randhir Singh vs. Union of India, AIR 1982 (SC) 879, following dicta has been laid down:-
No doubt, equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies and not for the courts, but where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
xxxx xxxx xxxx xxxx
It is well known that there can be and there are different grades in a service, with varying qualifications for, entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them, AIR 1962 SC 1139, Distinguished.
It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitution goal.
Construing Articles 14 and 16 in the light of the Preamble and Art. 39 (d), we are of the view that the principle 'Equal pay for Equal work' is deducible from those Articles and my be properly applied to cases of unequal ''scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
41. In Mewa Ram Kanojia vs. All India Institute of Medical Sciences, ATJ 1989 (1) SC 654, the following observations have been made:-
The doctrine of "Equal Pay for Equal Work" is not expressly declared a fundamental right under the Constitution. But Article 39(d) read with Articles 14 and 16 the Constitution declares the constitutional goal enjoining the State not to deny any person equality before law in matters relating to employment including the scales of pay. Article 39(d) read with Articles 14 and 16 of the Constitution enjoins the State that where all things are equal and person holding identical -posts, performing identical and similar duties under the same employer should not be treated differently in the matter of their pay. The doctrine of `Equal Pay for Equal Work' is not abstract one, it is open to the State to prescribe different scales of pay for different posts having regard to educational qualifications, duties and responsibilities of the post. The principle of 'Equal Pay for Equal Work' is applicable when employees holding the same rank perform similar functions and discharge similar duties and responsibilities are treated differently. The application of doctrine would arise where employees are equal in every respect but they are denied equality in matters relating to the scale of pay.
Tinkering with pay scales is not generally a matter in the purview of the courts. This has a domino effect and several equations are disturbed. It also leads to additional expenditure. Therefore, we should be wary of venturing into this field of activity and refrain from disturbing these delicate relationships. However, if the State itself disturbs these clear equations on extraneous considerations, the court can interfere.
42. No doubt in Hiramony Sen (supra), it has been ruled that to increase the pay scale is entirely to the Government and the judiciary must exercise self-restraint and not encroach into the executive or legislative domain. It is also held in S.C. Chandra (supra) that fixation of pay and determination of parity being a complex matter should be left to the expert body and grant of pay parity may result in adverse consequence. However, in Dinesh K.K. (supra), the following observations have been made:-
9. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors. , a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India . Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right.
10. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association . Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.
11. In State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors. , a three-Judge Bench of this Court, dealing with the same principle, opined that principle of equal pay is dependent upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities do make a difference. It was held that the judgment of administrative authorities, concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
12. In State of Haryana & Anr. Vs. Tilak Raj & Ors. , it has been observed that the principle of equal pay for equal work is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organizations or even in the same organisation. It has been reiterated that this is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. It has been emphasized that the problem about equal pay cannot be translated into a mathematical formula.
13. Yet again in a recent decision in State of Haryana & Ors. Vs. Charanjit Singh & Ors. , a Bench of three learned Judges, while affirming the view taken by this Court in the cases of State of Haryana & Ors. Vs. Jasmer Singh & Ors. , Tilak Raj (supra), Orissa University of Agriculture & Technlogy & Anr. Vs. Manoj K. Mohanty and Government of W.B. Vs. Tarun Roy & Ors. has reiterated that the doctrine of equal pay for equal work is not an abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal pay must be for equal work of equal value and that the principle of equal pay for equal work has no mathematical application in every case, it has been held that Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who are left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. Enumerating a number of factors which may not warrant application of the principle of equal pay for equal work, it has been held that since the said principle requires consideration of various dimensions of a given job, normally the applicability of this principle must be left to be evaluated and determined by an expert body and the Court should not interfere till it is satisfied that the necessary material on the basis whereof the claim is made is available on record with necessary proof and that there is equal work and equal quality and all other relevant factors are fulfilled.
20. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the apparent disparity and anomaly in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in pre-revised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution.
43. In K.T. Veerappa (supra) as regards discrimination in the pay revision, following observations have been made:-
13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.
14. In S.B. Vohra case(2004) 2 SCC 150 : 2004 SCC (L&S) 363 this Court dealing with the fixation of pay scales of officers of the High Court of Delhi (Assistant Registrars) has held that the fixation of pay scale is within the exclusive domain of the Chief Justice, subject to approval of President/Governor of the State and the matter should either be examined by an expert body or in its absence by the Chief Justice and the Central/State Government should attend to the suggestions of the Chief Justice with reasonable promptitude so as to satisfy the test of Article 14 of the Constitution of India. Further, it is observed that financial implications vis-a-vis effect of grant of a particular scale of pay may not always be a sufficient reason and differences should be mutually discussed and tried to be solved.
15. In the present cases, in compliance with the judgment of the Division Bench of the High Court, the Vice-Chancellor of the Mysore University constituted a committee headed by Shri Hiriyanna. The said Committee, in its report dated 8-6-1991, has recorded the observations that the details of the pay scales assigned by the Muddappa Committee, the Manjunath Committee, the Acharya Committee, the Gopala Reddy Committee as also the pay scales given effect to from 1-1-1977 and the claims of the appellants, on individual basis, could perhaps have been attended to by the University itself after the Muddappa Committee made its recommendations. The Vice-Chancellor and the Registrar of the Mysore University, while appearing before the Division Bench of the Karnataka High Court in CCs Nos. 84 to 103 of 1992 in compliance with the order dated 16-4-1992 had brought to the notice of the Bench that the direction issued by the learned Single Judge in WAs Nos. 2220-39 of 1989 dated 18-4-1990 and 29-1-1991 had already been complied with and arrears of salary had been paid to the employees of the University, who filed the said writ petitions. Thereafter, the respondent University submitted certain proposed amendments to the statute and the same were sent to the State Government for approval. The State Government, for the reasons best known to it, till date has not been able to state any good reason as to why the amendment of the statute as proposed by the University in regard to the fixation of the pay scales of its employees could not have been approved by the competent authority. The Vice-Chancellor in its affidavit dated 25-1-2000 filed in Writ Appeals Nos. 7007-55 of 1999 has categorically stated that the respondent University, in its meeting held on 17-4-1999, decided to comply with the orders of the Court and also to extend the benefit of the revised pay scale with effect from 1-1-1977 to those employees who are eligible for such benefits and have not gone to the Court. This decision was taken on the representation submitted by the appellants.
44. Further in G.S. Uppal (supra) on the pay parity involving the cardinal principle of equal pay for equal work, the following observations have been made by the Apex Court:-
22. It is not in dispute that a deputationist holds the post in a particular cadre office for the duration he remains on deputation and is a part of that cadre. No material has been placed on record by the appellants to show that the deputationists are appointed against only certain particular posts or that they cannot be posted or transferred to the posts held by the respondents. In fact, it is an admitted position that the posts are mutually inter-changeable. In this situation, it is reasonable to infer that a deputationist performs the same duties as those performed by other persons working in the cadre. It is also an admitted position that the qualifications laid down for recruitment in the Corporation are identical to those prescribed in the Departments of the Government. It is further clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f. 01.01.1986. As against this, their counter-parts in the Government and also the persons, who are posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent of 20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a disadvantageous position. The decision of the Government in rejecting the proposal of the Board of Directors suffers from the vice of invidious discrimination and cannot be sustained because the very same decision of the Board with regard to all other employees has since been accepted and approved by the State Government. On the scrutiny of the material on record, it is clear that the appellants did not produce any evidence on record to establish that the working conditions, responsibilities and nature of duties, etc. of the respondents are different to their counter-parts working in the same categories in the State Government, Boards and other Corporations, etc. and also the persons who are working with the Corporation on deputation.
24. The plea of the appellants that the Corporation is running under losses and it cannot meet the financial burden on account of revision of scales of pay has been rejected by the High Court and, in our view, rightly so. Whatever may be the factual position, there appears to be no basis for the action of the appellants in denying the claim of revision of pay scales to the respondents. If the Government feels that the Corporation is running into losses, measures of economy, avoidance of frequent writing off of dues, reduction of posts or repatriating deputationists may provide the possible solution to the problem. Be that as it may, such a contention may not be available to the appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India [1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4 SCC 245]. However, so long as the posts do exist and are manned, there appears to be no justification for granting the respondents a scale of pay lower than that sanctioned for those employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly shows that the employees of the Corporation have been treated at par with those in Government at the time of revision of scales of pay on every occasion. It is an admitted position that the scales of pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these occasions, the pay scales of the employees of the Corporation were treated and equated at par with those in Government. It is thus an established fact that both were similarly situated. Thereafter, nothing appears to have happened which may justify the differential treatment. Thus, the Corporation cannot put forth financial loss as a ground only with regard to a limited category of employees. It cannot be said that the Corporation is financially sound insofar granting of revised pay scales to other employees, but finds financial constraints only when it comes to dealing with the respondents, who are similarly placed in the same category. Having regard to the well reasoned judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we are of the view that the impugned judgment warrants no interference inasmuch as no illegality, infirmity or error of jurisdiction could be shown before us.
45. In Rajesh Mohan Shukla (supra), it is held that there is no justification for denial of equal pay for equal work when the only difference is the source of recruitment. The High Court of Delhi in W.P.(C) No. 13106/2005 in Union of India & Ors. vs. Mohinder Singh & Ors., decided on 18.05.2006, upheld the decision of the Tribunal on the basis of principle of equal pay for equal work and benefits have been granted to Draftsmen Grade-III.
46. In Mohinder Pal Singh (supra), the claim of Stenographer Grade-C in Ministry of External Affairs at par with CSSS has been turned down on the basis of 5th CPC finding out difference in the volume of work.
47. With the above backdrop of the trite position of law, the issues raised are to be examined.
DISCUSSION AND CONCLUSION:
48. The word historical has been defined in Concise Oxford Dictionary, Tenth Edition (Revised) as belonging to or set in the past. Historical parity is the parity or equality maintained in the context of the present Original Application between the pay scales of PSs/SOs with that of their counterparts in CSS/CSSS in the wake of the recommendations by several Pay Commissions. A historical parity would be when it is established as an obligation to one who is claiming parity of pay scales with the class or category had been situated in the past at par in the equivalent pay scale with the counterparts with whom such parity is claimed. It is no more res integra as transpired from the Chart, which is not disputed by the respondents, that earlier in the cadre of Stenographers Grade C /Assistants in the Fourth Central Pay Commission, the scale of pay was Rs.1400-2600, which had been upgraded in case of CSS/CSSS to Rs. 1640-2900 by issuing an O.M. but it has not been effected in CAT. The litigation resulted in an order passed by the DOP&T in pursuance of the direction of the Tribunal in OA No. 2865/1991 and CCP No. 262/1993 wherein it has been decided to grant pay scale to the counterparts CAT employees of Rs. 1640-2900 even without amending the recruitment rules. However, subsequently the rules were amended. In S.K. Sareen vs. Union of India & Ors. (OA No. 777/1992 decided on 20.12.1999), the pay scale of Rs.3000-4500 from 01.01.1986 was sought on the principle of equal pay for equal work at par with their counterparts in CSSS. When order was affirmed by the Delhi High Court on 19.04.2002 and SLP against which was also turned down, in CP 405/2003, an order was passed on 09.02.2005 upgrading the 16 posts of Private Secretaries to Principal Private Secretaries and one post of PPS to Senior Principal Private Secretary in the relevant pay scales at par with CSSS. This clearly shows that the parity in the pay scale has been maintained in the CAT relating to two categories upto the stage of Fourth CPC.
49. The only anomaly which had occurred on account of grant of pay scale of Rs. 1640-2900 has been set right on a judicial dicta which holds the field and was complied with.
50. In Fifth CPC the PSs/SOs were recommended the pay scale of Rs. 6500-10500 and also the counterparts in CSS/CSSS. However, the NFSG scale of Rs. 8000-13500 to the merged grade of A & B of PSs of CSSS has been allowed notionally w.e.f. 01.01.1996 and actually w.e.f. 03.10.2003. The applicants have raised this issue before the Ernakulam Bench where the CP converted into Misc. Application, an affidavit filed by the Government clearly indicates that the Commission has examined and recommended the issue of parity of employees of CAT with their counterparts in CSS/CSSS cadre in para 7.32.15 of the Report of the 6th Pay Commission. It is further reiterated on acceptance by the DOP&T vide letter dated 27.03.2008 where the parity, recommended by the 6th CPC in para 3.1.9 and 7.32.15 of the Report, with counterparts in CSS/CSSS has been accepted.
51. In the above view of the matter regarding the parity of pay scale in 5th CPC in the wake of an admitted fact of the historical parity between the CSS/CSSS with counterparts in CAT, a final decision is awaited for grant of NFSG grade of Rs.8000-13500 notionally and actually to the employees of the Tribunal. However, as this is not the issue before us, except reiterating in law their demand, the issue of historical parity between the PSs/SOs of CAT and on the other hand SOs/PSs of CSS/CSSS is no more res integra and once accepted by the government and recommended by 6th CPC, the aforesaid recommendations contained in paragraphs 3.1.9 and 7.32.15 having been accepted by the Government, the stand now taken by the respondents that what is applicable to the applicants in the present OA is para 3.1.14 of the recommendations of the 6th CPC is absolutely misconceived. It is pertinent to note that this para applies to non-secretariat offices and to those for whom there is no historical parity with CSS/CSSS and in favour of whom a criteria of recommendations has not been laid down in the 6th CPC recommendations. On a juxtaposition, 6th CPC while making its recommendations in para 7.32.15 as to cadre structure of higher pay scale in CAT reiterated that Assistants and Stenographers in CAT have demanded pay scales at par with their counterparts in CSS/CSSS and as the Commission has already recommended parity between the similarly placed posts in field offices and Secretariat, no separate recommendation has been made. The only logical and rationale inference to be drawn is that whatever has been recommended in para 3.1.9 is to be applied mutatis mutandis to the employees of the CAT on the condition precedent being fulfilled, which is establishment of historical parity with CSS/CSSS. The recommendations contained in para 3.1.14 of 6th CPC Report where the field organizations and non-secretariat organizations have been recommended the pay scale are not at all applicable to the employees of the CAT, as a specific recommendation made in paragraph 7.32.15 Commission having recommended parity between the similarly placed posts in field offices and secretariat the instant demand has been fulfilled. It is trite that when there is a specific recommendation made as transpired from para 3.1.9 as to parity with pay scale of CSS/CSSS structure the asterisk (*) clearly shows that even to the non-secretariat offices and organizations being carved out as an exception to the recommendations contained in para 3.1.14 is that those organizations which are not exhaustive but includes departments and organization which have had a historical parity the pay scale would be at par with CSS/CSSS. It is trite that under the principle of interpretation that in case of interpretation of a service rule, if two views are possible then the rule has to be interpreted with the practice followed in the department for long time as held in Shailendra Dania & Ors. vs. S.P. Dubey & Ors., 2007 (2) SCC (L&S) 202, a marginal note with a provision is an integral part of it and being an exception in the instant case as an asterisk (*) to para 3.1.9, the same has applicability to all field offices and non-secretariat organizations, all departments where there has been historical parity with the pay scale of their counterparts in CSS/CSSS. We cannot read para 3.1.14 in isolation of para 3.1.9 and 7.32.15 where both the recommendations having been accepted by the Government, only applying para 3.1.14 to the exclusion of 3.1.9 would amount to approbating and reprobating simultaneously, as a conscious and well taken decision when transformed into an affidavit of the Government before the Ernakulam Bench, an admission to acceptance of parity and acceptance also of established parity as a historical background leaves no doubt in our mind that there has been a historical parity of SOs/PSs in CAT with their counterparts in CSS/CSSS. They cannot now, as a contradictory stand, deny the same as it would not only be unfair but also is a misuse of their discretionary power which is to be exercised by an administrative authority judiciously after balancing all the relevant factors as ruled by the Apex Court in Union of India vs. Kuldip Singh, 2004 (2) SCC 590. A discretion vested in the administrative authority is neither unfettered nor absolute. It is to be exercised in consonance with the rights of a government employee and Constitution of India. A consideration worth in law is one, which thinks over on active application of mind all the relevant consideration and factors as ruled by the Apex Court in Bhikubhai Patel (supra). As a model employer just to deprive the applicants their rights and legitimate dues without any justifiable reasons and on misreading of their CSSS Revised Pay Rules, 2008, irrelevant considerations have been grounded to deprive the applicants the requisite pay scales on established historical parity with those of their counterparts in CSS/CSSS. Learned counsel for the respondents relied upon the decision of High Court in Mohinder Pal Singh (supra) and in M.V.R. Rao (supra) by a Larger Bench of this Tribunal. In this regard it is pertinent to note that this issue of parity of CAT employees with CSS/CSSS has been dealt with by this Tribunal in S.K. Sareen s case (supra) which, on affirmation from the High Court, and also rejection of SLP, on implementation by the respondents not only attained finality but also is an admission to the effect by the respondents that the SOs/PSs of CAT are maintaining historical parity with those of their counterparts in CSS/CSSS. It is worthwhile to note that there is even a finding recorded that the duties and functional requirements of the CAT employees are more onerous than their counterparts in CSS/CSSS, which has not been overturned by any dicta. A judicial dicta when holds the field and the arena in which it operates, it is impermissible in law to the administrative authorities to infiltrate it as ruled by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327. The Apex Court has also ruled in Dhampur Sugar Mill v. State of Uttranchal, 2007 (11) SCALE 374 that when a public authority acts with oblique motive, bad faith or takes into account extraneous or irrelevant consideration, the exercise has to be held as not in accordance with law.
52. In the above view of the matter the contention that the Government has not accepted the claim of the applicants as to the parity with CSS/CSSS is founded on a ground and justification, which has been misconceived by them and wrongly applied. Such a consideration cannot be a consideration worth in law.
53. In the matter of pay scale equation though the prerogative lies with the Government but any action taken especially when such a recommendation covers the claim of the applicants and accepted by the Government, no reasonable justification has come forth, which would deprive the applicants the grant of identical pay scale. Had there been a case where recommendations having been accepted by the Government in its discretion, the applicants would have no indefeasible right to claim the pay scale. One of the points raised is financial constraint in accord of benefits, which as a trite law, has not been found to be a valid defence by the Government, as a right of an employee cannot be defeated on this technical issue. In the matter of parity of pay scale, financial constraint cannot be a defence as ruled by the Apex Court in Union of India vs. Atonomic Engery Workers Staff Union, 2005 (1) ATJ (HC) (Bombay) 92.
54. As regards opening of flood gate litigation and administrative chaos, it is held to be no ground to take away the valuable right of a person under the Constitution by the Apex Court in Coal India Ltd vs. Saroj Kumar Mishra, 2008 (2) SCC (L&S) 321. In G.S. Uppal (supra), financial constraints have not been found to be good ground on established implementation of doctrine of equal pay for equal work.
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.
58. Consequently, MA for joining together is also allowed.
(Dr. Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
/Sunil/
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