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

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

CAT order on 17.3.1999 dismissed in High Court Delhi

I should thank Mr.Ranbir and Mr.Sreenivasan for providing the details that the final order has come in favour of ESI.

Dear friends of field office, Let us carry on our fight for justice as the 6th PC itself had recommended parity which is the ultimate wage revision body and it was accepted by the Govt. But, Govt has again deviated from that. I will be uploading shortly the Case Laws of CAT in the cases of Central Admn.Tribunal employees and AIIMS
in favour of parity. Let us be positive and carry on to achieve our goal.
Ramnath

The judgment of Delhi High Court ruling in favour of ESI is reproduced below:

WP(C) Nos.7690/2004 & 19514-15/2005 Page 1 of 6
$~R-85 & 86 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 11th August, 2010 + W.P.(C) 7690/2004 EMPLOYEES STATE INSURANCE CORPORATION.... Petitioner Through: Ms.Geeta Luthra, Senior Advocate with Mr.Sanjeev Sahay, Advocate. versus ALL INDIA EMPLOYEES’ STATE INSURANCE CORPORATION EMPLOYEES FEDERATION & ORS. ..... Respondents Through: Mr.A.K.Behera, Advocate. W.P.(C) 19514-15/2005 EMPLOYEES STATE INSURANCE CORPORATION & ORS. .... Petitioner Through: Ms.Geeta Luthra, Senior Advocate with Mr.Sanjeev Sahay, Advocate. versus ALL INDIA EMPLOYEES’ STATE INSURANCE CORPORATION EMPLOYEES FEDERATION & ORS. ..... Respondents Through: Mr.A.K.Behera, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, J. (Oral)
1. The All India Employees’ State Insurance Corporation Employees’ Federation i.e. respondent No.1 took up an issue pertaining to wages to be paid to its members holding posts in Group ‘C’ under the petitioner by and under OA No.981/1994
WP(C) Nos.7690/2004 & 19514-15/2005 Page 2 of 6
which was allowed by the Central Administrative Tribunal vide judgment and order dated 17.3.1999; the consequence whereof was a higher wage to be paid to the employees of the petitioner in respect of whom directions were issued for higher wages to be paid.
2. The petitioner filed a writ petition being WP(C) No.384/1999 in this Court challenging the judgment and order dated 17.3.1999 passed by the Central Administrative Tribunal. A Civil Miscellaneous Application was filed in the Writ Petition praying that pending hearing of the writ petition, the order passed by the Tribunal be stayed.
3. The stay was declined. The interim order declining stay was challenged before the Supreme Court. The Petition For Special Leave to Appeal No.11642/1999 was dismissed by the Supreme Court on 23.8.1999. As a result, large number of employees whose cause was espoused by respondent No.1 started receiving higher wages.
4. The writ petition filed by the petitioner challenging the judgment and order dated 17.3.1999 passed by the Central Administrative Tribunal succeeded vide judgment and order dated 31.5.2002. The decision of the Tribunal was set aside. The respondent No.1 preferred a Petition For Special Leave to Appeal No.18355/2002 before the Supreme Court which was withdrawn. Review Application was filed praying that the order dated 31.5.2002 be reviewed. The Review Application was dismissed vide order dated 18.12.2003 and with that was the end of the litigation pertaining to the claim of the respondent No.1 that its members be granted higher wages.
5. A second round of litigation ensued because while dismissing the application seeking review of the judgment and order dated 31.5.2002, pertaining to the plea that the dismissal of the claim of the respondent No.1 for its members would result
WP(C) Nos.7690/2004 & 19514-15/2005 Page 3 of 6
in the members being required to refund the extra salary received by them, it was observed that if the petitioner was to effect recoveries, the affected employees would be entitled to take recourse to such action as was permissible by law. The petitioner started effecting recoveries by deducting some money from the salary payable each month to the employees who had received excess payments.
6. This resulted in further litigation, when two Original Applications being OA No.3118/2003 and OA No.2067/2004 were filed by the respondents before the Central Administrative Tribunal praying that the petitioner be restrained from effecting recoveries of excess salary paid.
7. In response, the petitioner pleaded that it was entitled to restitution as it had paid higher wages on account of orders passed by the Tribunal which was set aside and further the employees had expressly undertaken to refund the extra salary if their claim ultimately failed.
8. The Tribunal has allowed OA No.3118/2003 vide judgment and order dated 30.1.2004 and following the reasoning in the order dated 30.1.2004 has allowed OA No.2067/2004 vide judgment and order dated 8.2.2005.
9. In a nutshell, the reasoning in the two orders of the Tribunal is the law (ostensibly) declared by the Supreme Court in the decisions reported as (1994) 2 SCC 521 Shyam Babu Verma vs. Union of India & Ors., (2002) 6 SCC 72 State of Haryana & Anr. vs. Haryana Civil Secretariat Personal Staff Assocation, (2002) 9 SCC 68 State of Bihar & Ors. vs. Secretariat Press Ministerial Staff Union & Ors., 1995 Supp. (1) SCC 18 Sahib Ram vs. State of Haryana & Ors., 1995 Supp.(1) SCC 149 Gabriel Saver Fernandes & Ors. vs. State of Karnataka & Ors..
10. As regards the plea of the petitioner that the employees had expressly undertaken by furnishing it in writing that if their
WP(C) Nos.7690/2004 & 19514-15/2005 Page 4 of 6
claim failed, they would refund the excess amount paid, the Tribunal has held that the said writing was under a compulsion because if the same was not submitted the petitioner would not have paid the salary as directed by the Tribunal.
11. As regards the reasoning of the Tribunal noted in para 10 above, it would be enough for us to state that if a claim is allowed and the party vanquished has challenged the decision of the original adjudicator and is compelled to comply with the decision of the original adjudicator pending hearing of its claim before the higher authority, the question of compulsion or otherwise in obtaining written undertakings from the victorious party to recompense if the action before the higher authority succeeds is neither here nor there.
12. As regards the reliance by the Tribunal on the decisions of the Supreme Court noted in para 9 above, suffice would it be state that the law of restitution guides us that if a party receives a benefit under a direction issued by a Court, which direction is ultimately found to be faulty, recompense must flow to the opposite party. Section 144 of the Code of Civil Procedure 1908 is premised on this principle. It need hardly be said that no act of a Court can be to the prejudice of either party.
13. Thus, as the law stands and as it is understood by us, since the employees of the petitioner, who were members of the first respondent association, got benefit of higher wages pursuant to a decision rendered by the Central Administrative Tribunal, which decision was ultimately reversed, recompense has to follow.
14. The decisions of the Supreme Court relied upon by the Tribunal do not lay down any principle of law contrary to the afore-noted principle of law. The direction in the said decisions, that recoveries would not be effected, are obviously the result of the Supreme Court exercising power under Article 142 of the
WP(C) Nos.7690/2004 & 19514-15/2005 Page 5 of 6
Constitution of India.
15. Conscious of the fact that the jurisdiction we exercise is under the shadow of: ‘Satyamev Jayate’ i.e. ‘Truth shall prevail’ and the Supreme Court exercises jurisdiction under the shadow of: ‘Yato Dharmastato Jayah’ i.e. ‘Truth alone I uphold’, in other words, our jurisdiction relates to Niti and the jurisdiction of the Supreme Court relates to Nyaya and hence the Supreme Court alone is vested with the power of complete justice by virtue of Article 142 of the Constitution of India we cannot issue directions as were issued by the Supreme Court in the decisions noted in para 9 above.
16. It is urged by learned counsel for the respondent No.1 that only in cases where excess payments are made to employees as a result of misrepresentation, fraud or cheating by a beneficiary have the Courts directed refund to be made and whenever payments are made upon a mistake or otherwise on account of a fact which does not attract moral turpitude, Courts have refrained from directing recoveries to be made.
17. Though no such decision has been cited, but we are conscious of various decisions pronounced by the Supreme Court where it has been held that where employees in the lower rungs of service are bona fide paid a sum in excess of what is due and upon the mistake being detected, Courts would not permit recovery. The said reasoning is premised on equity that lowly paid employees, if paid sums in excess of what is due would spend it on themselves and their family on a bona fide belief that what they got is due to them and it would be most unjust to direct them to refund money.
18. This principle cannot be attracted in a situation where the employee is made to pay higher wages, neither on account of mistake of either party, nor on account of any fraud, misrepresentation or the like, but under orders of the Court,
WP(C) Nos.7690/2004 & 19514-15/2005 Page 6 of 6
which ultimately are found to be wrong and hence set aside by a Superior Court.
19. Noting that the members of the respondent held posts in Group ‘C’ posts, reversing the two impugned decisions, we refrain from requiring the beneficiaries of the excess payments to pay any interest to the petitioner. But, the principal amount received in excess must be returned.
20. Learned counsel for the petitioner states that excess payment made is approximately Rs.19.9 crores, a figure which is disputed by learned counsel for the respondent.
21. Learned counsel for the respondent wants us to note that many beneficiaries have retired and some have left for their heavenly abode.
22. Needless to state, it is for the petitioner to decide how it can effect recovery which can obviously be from the asset of the employee who received the excess payment.
23. The writ petitions are allowed. Impugned orders dated 30.1.2004 and 8.2.2005 are set aside. OA No.3118/2003 and OA No.2067/2004 are dismissed.
24. No costs.
PRADEEP NANDRAJOG, J. MOOL CHAND GARG, J. AUGUST 11, 2010 dk