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
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
15. S. Rangarajan,
R/o E-102, Nanakpura,
Moti Bagh-II,
New Delhi
16. Mahendra Kumar Goyal,
S/o late Sh. Rameshwar Dass,
R/o G-22/142, Sector 7,
Rohini,Delhi
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
20. S.P.S. Rawat,
S/o Sh. D.S. Rawat,
R/o 244/94-C, School Block,
Mandawali,Delhi
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
(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. AnOM 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 ofGujarat
K.T. Veerappa & Ors. v. State ofKarnataka
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
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 ofJharkhand
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 ofKarnataka
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 ofPunjab
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
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
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 ofHaryana
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 theMysore University
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 theApex Court
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 theOSs
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)
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,
5. N.S.N. Rao,
S/o Shri N.Kameshwar Rao,
R/o H.No. F-354, Sec.9,
Vijay Nagar,
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,
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,
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,
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,
15. S. Rangarajan,
R/o E-102, Nanakpura,
Moti Bagh-II,
16. Mahendra Kumar Goyal,
S/o late Sh. Rameshwar Dass,
R/o G-22/142, Sector 7,
Rohini,
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,
19.
S/o Sh. Nain Singh,
R/o C-1/61, Sector 17,
Rohini,
20. S.P.S. Rawat,
S/o Sh. D.S. Rawat,
R/o 244/94-C, School Block,
Mandawali,
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,
-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,
(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
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
K.T. Veerappa & Ors. v. State of
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 (
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.
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
29. Learned counsel would also rely upon the decision of the Delhi High Court in CWP No.102/2001 Mohinder Pal Singh & Ors. v.
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
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
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.
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.
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),
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
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
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.
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
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
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)
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