Central Administrative Tribunal - Delhi
Kuldip Singh vs Union Of India on 16 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No. 4607/2011 ORDER RESERVED ON: 16.08.2012 ORDER PRONOUNCED ON: 16.10.2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SUDHIR KUMAR, MEMBER (A) Kuldip Singh, 21-D, Faridabad, Haryana. Applicant. (By Advocates Shri C. Hari Shankar with Shri S. Sunil and Shri P.K. Singh) VERSUS 1. Union of India Through The Secretary, Department of Personnel & Training, Ministry of Personnel, Public Grievances and Pensions, North Block, New Delhi. 2. Central Administrative Tribunal, Principal Bench, Through the Principal Registrar, Copernicus Marg, New Delhi. Respondents. (By Advocate Shri Sandeep Jha proxy for Shri H.K. Gangwani) O R D E R
Shri G. George Paracken:
This is the second round of litigation by the applicant seeking parity in his pay scale with that of the Accounts staff in other Departments of the Central Government in terms of the Ministry of Finance and Company Affairs, Department of Expenditure Office Memorandum No. F. No. 6/82/E.III. (B)/91 dated 28.02.2003, invoking the doctrine of equal pay for equal work.
2. The factual matrix of the case is that the applicant was absorbed in the Respondent - Central Administrative Tribunal (`CAT for short) as Senior Accountant on 01.11.1990. Thereafter, he was promoted as Junior Accounts Officer w.e.f. 30.09.1992 and as Accounts Officer w.e.f. 01.04.2005. As per CAT (Staff) (Conditions of Service) Rules, 1985 issued vide GSR 825 (E) dated 31.10.1985, the conditions of service of the officers and other employees of the Tribunal in matters of pay and allowances shall be regulated in accordance with such rules and regulations as are, for the time being, applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D, as the case may be, of the corresponding scales of pay stationed at those places. He has, therefore, contended that when the aforesaid upgraded pay scales have been made applicable to all Central Government offices, the employees of CAT in corresponding grades cannot be denied the same benefits as it will amount to invidious discrimination with hostility. The relevant part of the said rules reads as under:
Conditions of service. The conditions of service of the officers and other employees of the Tribunal in matters of pay, Allowances, Leave, Provident Fund, age of superannuation, pension and retirement benefits, medical facilities and other conditions of service, shall be regulated in accordance with such rules and regulations as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C and D, as the case may be, of the corresponding scales of pay stationed at those places.
SCHEDULE S.No. Name of the post @Scale of pay
1. Registrar (Principal Bench) Rs.5900-6700
2. Registrar (Additional Benches Bangalore/Madras) Rs.5100-5700*
3. Registrar (other Benches) Rs.4500-5700
4. Financial Adviser and Chief Accounts Officer Rs.4500-5700
5. Joint Registrar Rs.3700-5000
6. Deputy Registrar Rs.3000-4500
7. Deputy Controller of Accounts Rs.3000-4500
8. Accounts Officer Rs.2375-3500
9. Section Officer Rs.2000-3500
10. Court Officer Rs.2000-3500
11. Private Secretary Rs.2000-3500
12. Legal Draftsman Rs.2000-3500
13. Librarian Rs.2000-3500
14. Personal Assistant Rs.2000-3200
15. Hindi Translator Rs.1640-2900
16. Junior Accounts Officer Rs.1640-2900
17. Assistant Rs.1400-2600
18. Court Master Rs.1400-2600
19. Stenographer Rs.1400-2600
20. Junior Librarian Rs.1400-2600
21. Senior Accountant Rs.1400-2300
22. Junior Accountant Rs.1200-2040
23. UDC Rs.1200-2040
24. Junior Stenographer Rs.1200-2040
25. L.D.C. Rs.950-1500
26. Hindi Typist Rs.950-1500
27. Staff Car Driver Rs.950-1400
28. Photocopier Rs.950-1400
29. Despatch Rider Rs.950-1400
30. Gestener Operator Rs.950-1400
31. Senior Library Attendant Rs.950-1400
32. Junior Library Attendant Rs.800-1150
33. Daftary Rs.775-1025
34. Jamadar Rs.775-1025
35. Peon Rs.750-940
36. Safaiwala Rs.750-940
37. Chowkidar Rs.750-940
38. Mali Rs.750-940 @The scale of pay corresponds to similar scale under the Central Government.
*The scale of pay of Rs.5100-5700 for the Registrars in the Bangalore and Madras Benches of the Central Administrative Tribunal will be personal to the present incumbents. Future appointments to the posts when the present incumbents cease to hold the post will be in the scale of pay of Rs.4500-5700.
3. As far as the method of recruitment of Accounts Personnel in CAT is concerned, it is governed by the CAT (Accounts Personnel Posts) Recruitment Rules, 1990. Its Schedule contains the names of the posts, their number, classification and scale of pay which are as under:
S. No. Name of Posts No. of posts Classification Scale of pay
1. Deputy Controller of Accounts 01 General Central Service Group (A) Gazetted. Rs.3000-4500 (Revised to Rs. 10000-325-15200)
2. Accounts Officer 16 General Central Service Group (B) Gazetted. Rs.2375-3500 (Revised to Rs. 7450-225-11500)
3. Junior Accounts Officer 16 General Central Service Group (B) Non-Gazetted. Rs.1640-2900 (Revised to Rs. 5500-175-9000)
4. Senior Accountant 16 General Central Service Group (C) Non Gazetted. Rs.1400-2600 (Revised to Rs. 4500-125-7000)
5. Junior Accountant 15 General Central Service Group (C) Non-Gazetted. Rs.1200-2040 (Revised to Rs. 4000-100-6000)
4. Later on, the Government approved grant of higher pay scales for the Accounts staff of Railways on notional basis w.e.f. 01.01.1996 and on actual basis prospectively. Keeping in view the fact that the pay scales of corresponding categories in various organized Accounts cadres have traditionally been on par, the Government, vide the aforesaid O.M. dated 28.2.2003 issued by the Ministry of Finance and Company Affairs, Department of Expenditure, decided to extend the dispensation approved in the case of Accounts Staff of Railways to the corresponding categories in all the organized Accounts cadre. Accordingly, the pay scales of the following posts and their equivalent posts in the organized Accounts cadres existing in various Ministries/Departments of Govt. of India have been upgraded notionally with effect from 01.01.1996 and actually from 19.02.2003. The said OM dated 28.2.2003 is reproduced as under:
F.No.6/82/EE.14 (B)/91 Ministry of Finance & Company Affairs Department of Expenditure (E.III-B Branch) *** New Delhi, the 28th February, 2003 OFFICE MEMORANDUM Subject: Pay scales for the staff belonging to the Organized Accounts Department.
The undersigned is directed to say that the Government had approved grant of higher scales for the Accounts staff of Railways on notional basis w.e.f. 1.1.1996 with actual payments being made prospectively. Keeping in view the fact that pay scales of corresponding categories in various organized Accounts cadres have traditionally been on par, it has been decided that the dispensation approved in case of the Accounts staff of Railways may be extended to the corresponding categories in all the organized Accounts cadres.
2. Pay scales of the following posts and their equivalent posts in the organized Accounts cadres existing in various ministries/departments of the Government of India may accordingly be upgraded on notional basis w.e.f. 1.1.1996 with actual payments being made from 19.2.2003 the date on which the decision was approved by the Government as under:
Designation Pay scale prior to 1.1.96 (Rs.) Existing pay scale (Rs.) Pay scale to be extended notionally w.e.f. 1.1.1996 with actual payments being made prospectively.
(Rs.) Auditor/Accountant 1200-30-1560-40-2040 4000-100-6000 4500-125-7000 Sr. Auditor/ Sr. Accountant 1400-40-1600-50-2300-60-2600 5000-150-8000 5500-175-9000 Section Officer/JAO 1640-60-2600-75-2900 5500-175-9000 6500-200-10500 Asstt. Audit Officer/Asstt. Accounts Officer 2000-60-2300-75-3200 6500-200-10500 7450-225-11500
3. In so far as persons serving in the Indian Audit and Accounts Department are concerned, these orders issue after consultation with the C&AG of India.
Sd/-
(USHA MATHUR) Joint Secretary to the Government of India.
5. As the benefits granted to the Account Staff by the aforesaid OM have not been extended to the applicant, he had earlier approached this Tribunal vide OA No. 2951/2003. His contention in the aforesaid OA was that as per the notified Rules, the Tribunal has its own separate organized accounts service having the sanctioned posts of Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant. Further, according to him, once there is an Accounts Cadre in CAT with duly notified rules, the same has to be treated as an organized cadre as ruled by the Bangalore Bench of this Tribunal in OA No. 15 of 1999 - Unni Menon Vs. Union of India, decided on 01.03.2000. It was allowed on 21.04.2010 with a direction to the respondents to grant him also the benefit of upgraded pay scale of Rs.6500-10500 on notional basis w.e.f. 01.01.1996 and on actual basis w.e.f. 19.02.2003, including arrears. Its relevant part is as under:
9. Learned counsel for the applicant states that as per the notified Rules, the CAT has its own separate accounts service having the sanctioned posts of Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant. As per GSR 825 (E) dated 31.10.1985, Central Administrative Tribunal (Staff) (Conditions of Service) Rules, 1985, provided that the conditions of service of the officers and other employees of the Tribunal in matters of pay and allowances shall be regulated in accordance with such rules and regulations as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D, as the case may be, of the corresponding scales of pay stationed at those places. Learned counsel further states that when upgraded pay scales have been made applicable to all Central Government offices, CAT being one such organization, the employees of CAT in corresponding grades cannot be denied the same benefit as it will be an invidious discrimination with hostility. Learned counsel would contend that once when there is accounts cadre in CAT with duly notified rules, the same has to be treated as an organized cadre and rightly the co-ordinate Bench of the Tribunal in Unni Menons case (supra) ruled the same. Though the High Court of Karnataka had overturned the decision of the Tribunal in Unni Menon (supra), but the SLP is pending and the law will take its own course.
10. Learned counsel has subsequently stated that once the parity of SOs and PSs with CSS/CSSS has been established in S.R. Dheers case (supra), the same would mutatis mutandis apply to the accounts cadre of the CAT and the higher pay scales cannot be denied to the applicant as Junior Accounts Officer.
11. Learned counsel has brought to our notice the case of State of Mizoram (supra) where the higher pay scales were denied on the ground that Engineering Service in the State was not an organized service. The Apex Court in the aforesaid case ruled as follows:
6. Great stress was laid on the fact that Engineering Service in the State was not an organized service and therefore, it did not have categorization by way of entrance level and senior level posts and for that reason the higher scale of Rs. 5900-6700 which was admissible for senior level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Serv-ice as an unorganized service in the State is absence of recruitment rules for the serv-ice. Who is responsible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly 'No'. For failure of the State Government to frame recruitment rules and bring Engineering Service within the frame-work of organized service, the engineers can-not be made to suffer. Apart from the rea-son of absence of recruitment rules for the Engineering Service, we see hardly any dif-ference in organized and unorganized serv-ice so far as Government service is con-cerned. In Government service such a dis-tinction does not appear to have any rel-evance. Civil Service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words 'organised service' and 'unorganised service'. Nothing has been pointed out in this behalf. The ar-gument is wholly misconceived.
12. If one has regard to the above, having failed to declare the accounts service of the Tribunal as organized service, which is not only regular accounts service but also governed by the notified rules, first of all, it has to be treated as an organized service. Even if the issue is sub judice before the Apex Court, the same would not come in the way of the applicant to be accorded the benefits of higher pay scale on the principles of equal pay for equal work as failure to frame the rules by the Government and bring the accounts service of the CAT as an organized service, cannot be blamed on the applicant. Learned counsel states that in one of the decisions of the Tribunal in OA 208/1997 in J.R. Chobedar Vs. Union of India & Ors. decided on 24.02.2004 pertaining to the accounts service in Border Security Force, the issue of organized and unorganized service has not been found to be apt in law and relying upon the decision of the Apex Court in Randhir Singh Vs. Union of India & Ors. (1982 (1) SLR 756), equal pay for equal work was allowed to grant the revised pay scales. This decision of the Tribunal when assailed in the High Court of Delhi in WP (C) No. 20065-67/2004), a judgment dated 25.01.2005 not only affirmed the decision of the Tribunal but the following observations have been made:
Similarly, on 7th December, 1995, the BSF, Pay and Accounts Division also taking into consideration the rejection by the Ministry of Finance disposed of the application of the respondent that it cannot be treated as an organized accounts service. On the basis of the aforesaid, it was contended before us that the finding of the learned Tribunal in the impugned order is not as per the report of the Pay Commission and BSF and there was no cadre of the Accounts Officer in the BSF and the anomaly has come up in view of the re-structuring of the cadre. In our view the reliance by the petitioner on the letter dated 6th September, 1995 (supra) is misplaced. The point raised by the learned counsel for the petitioner was considered in depth by the Tribunal and on the basis of the material before the Tribunal, the Tribunal gave the opinion that if certain sales were missing that will not take away the trait of the organized cadre. It was also considered that the method and manner of promotion has nothing to do with a cadre being organized or not. If it has other traits that it is a cadre comprising of reasonable number of persons, they have specific rules in this regard and there is no other factor which prompts one to conclude that it is an unorganized cadre. Relying upon the judgment of this Court in T.N. Natarajan and Ors. v. Union of India and Ors. in CWP 176/1979 decided on 3rd September, 1980 which also dealt with a similar controversy, it was held by the Tribunal by a reasoned order that the cadre of the respondent was an organized cadre.
4. We find no infirmity with the impugned order. No other point has been urged before us. We find no merit in the petition. Dismissed.
13. The aforesaid decision was also upheld by the Apex Court in CC 6923-6925/2005 by an order dated 29.07.2005. Learned counsel states that in all fours, the present issue is covered by the aforesaid ratio. Shri Khatana further relies upon the decision of the Tribunal in OA 969/2006, R.K. Sharma & Ors. Vs. Union of India & Ors. decided on 10.05.2007 whereby on the basis of the judgment in J.R. Chobedar (supra), the applicants, Junior Accounts Officers, were allowed to grant the higher pay scale of Rs.6500-10500. While it was challenged before the High Court in WP (C) No.7231/2007, decided on 29.05.2009, not only the decision of the Tribunal has been upheld but the issue regarding financial constraints has been repelled on the basis of State of Mizoram (supra) with the following observations:
6. In the present case, the petition does not disclose on what basis the respondents are being treated as members of an unorganized service while those holding cadre posts in Civil Accounts Service are being treated as belonging to Organized Accounts Service. This is not the case of the petitioner that they are performing different functions or that their qualifications for entry in service or promotion etc are different. The very fact that the petitioner has accorded the higher scale to the respondents, albeit from a later date, indicates that the petitioner accepts that there is no such distinction between the respondents and those holding cadre posts, as would disentitle them from the same pay which is being drawn by the holders of cadre posts.
7. In view of the above, we find no ground to interfere with the order passed by the Tribunal. The writ petition is devoid of any merit and is hereby dismissed.
14. On the other hand, respondents counsel vehemently opposed the contentions of learned counsel for the applicant and stated that an Accounts Officer in Allahabad Bench of the Tribunal had preferred O.A. 45/2010 for grant of upgradation of grade pay of Accounts Officers from Rs.4600 to Rs.5400, which was disposed of by order dated 13.01.2010, with a direction to the respondents to pass a speaking/reasoned order. In compliance of the aforesaid order of the Tribunal, respondents have passed an order dated 15.04.2010 wherein it is stated that as per the CCS (RP) Rules, 2008, the Accounts Officers of the Organized Accounts Cadre have been placed in the scale of Rs.8000-13500 with the Grade Pay of Rs.5400 in the Pay Band-2. The acceptance of the request of the applicant would, therefore, place the Accounts Officers of the CAT in a higher pay scale of PB-3 with grade pay of Rs.5400 than the Accounts Officers of the Organized Accounts Cadre which would not be justified. Learned counsel would also contend that the Sixth Pay Commission in para 3.8.5 has not considered any parity between various posts in organized and un-organized Accounts Cadre and has recommended that the existing relativity between the accounts related posts outside organized accounts cadres and ministerial posts shall be maintained. As such, as Accounts Officers in the CAT had no pre-existing relativity prior to 01.01.2006 with the SOs/PSs in CAT as well as the SOs/PSs of the CSS, their claim has been turned down. Learned counsel would also rely upon to distinguish the case of J.R. Chobedar (supra) by contending that there are two separate cadres organized and unorganized in the accounts service. In the counter reply, it is stated that the word `appropriate Government is defined by Section 2 (d) of the Act and under Section 13 (2), the salaries, allowances and conditions of service of the officers and other employees of a Tribunal shall be such as specified by Rules made by the `appropriate Government. The Accounts Staff of the Central Administrative Tribunal cannot be called as an Organized Accounts Cadre and the Vth Pay Commission in its report has stated that the Organized Accounts cadres are mainly in the Indian Audit & Accounts Department under the Comptroller & Auditor General of India. As such, there are separate rules governing the conditions of service of other Organized Accounts Cadre. Learned counsel would further contend that the applicant is not entitled for the benefit of the O.M. and he prays for dismissal of the O.A.
15. We have carefully considered the rival contentions of the parties and perused the material on record.
16. Any administrative jurisdiction executed cannot take defence of financial constraints for grant of fundamental right of parity in pay scale, as ruled in Haryana State Minor Irrigation Tubewells Corporation & Ors. Vs. G.S. Uppal & Ors. (2008 (7) SCC 375). When an administrative authority acts whether it includes the Cadre Controlling Authority or Ministry of Finance, any order passed on administrative side on all fours is to be decided on the touchstone of reasonable object sought to be achieved, as ruled in Noida Entrepreneurs Assn. Vs. Noida & Ors. (2008 (1) SCC (L&S) 672). The equality in law has to prevent hostile discrimination which has no reasonable nexus with the object sought to be achieved, which is an act on administrative side, cannot pass the twin test in the wake of Article 14 of the Constitution of India.
17. In judicial functioning, if a decision arrived at earlier like in the present case, is sub judice in the Supreme Court, it is open for us to modify the orders in view of subsequent events and changed circumstances. As the decision of the High Court of Karnataka in Unni Menon (supra) ruled against for the purposes of grant of parity of pay, service in Accounts Cadre as an organized one since not having been overturned and modified by the Apex Court, may not hold a valid precedent, but decision in Mizorams case (supra) covers the issue. In the event of a decision arrived in sub judice SLP, law shall take its own course. However, from the stand taken by the respondents, it is clear that denying the pay scale and benefit of O.M. dated 28.02.2003 to the applicant, is solely on the ground that the Accounts Cadre in the Tribunal is not an organized cadre. However, what has been allowed to the Junior Accounts Officers in other Ministries/Central Government Departments as well in Organized Accounts Departments, is the pay scale of Rs.6500-10500. CAT (Staff) (Conditions of Service) Rules, 1985, more particularly Rule 4, provides that the conditions of service of officers and other employees of the Tribunal, including accounts cadre, in the matter of pay and allowances, etc. are to be regulated in accordance with the rules and regulations, as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D of the Central Government, which leads no doubt in our mind that when statutory rules on subordinate legislation have been framed by the Government, the administrative orders would not override it. As such, whatever the pay scales are promulgated for the accounts cadre in other Ministries and Departments, the same would have to be mutatis mutandis adopted in the accounts cadre of the CAT, especially when there is no case made out by the respondents as to the functional requirement of accounts cadre in Tribunal being at variance and distinction in discharge of duties and responsibilities attached to the posts in accounts cadre with that of their counterparts in other Departments and Ministries. It is to be noted that as per Notification dated 17.12.1998 promulgating Central Administrative Tribunal (Staff) (Conditions of Service) Amendment Rules 1998 a JAO has been placed in the pay scale of Rs.5500-9000 but an explanatory memo refers to the CAT (Staff) (Conditions of Service) Rules of 1985 whereas the accounts cadre officers are to be placed and extended the revised pay scale, as recommended by the Vth CPC. Vth CPC would have allowed lesser pay scale but once the pay scales of Junior Accounts Officers have been revised from Rs.5500-9000 to Rs.6500-10500 by the Central Government to their employees, in various departments and Ministries, the same cannot be denied to the applicant as the objection of organized service would have no impediment as what is required under the statutory rules of the Tribunal is parity with the counterparts on extension of pay scales by Government orders. The pay scales have not been accorded to the applicant with a stipulation that the accounts service in the CAT is not an organized service. Rather, the question of unorganized or organized service would have no bearing in granting a higher pay scale to the applicant because accounts cadre in the Tribunal is a regular one governed by notified Government rules which are the essential ingredients and components. As such, the accounts service in the Tribunal has to be treated as a deemed organized cadre for the purposes of pay and allowances.
18. The contention put forth by the respondents counsel as to the decision of the Allahabad Bench and an order passed on 15.04.2010 taking resort to the recommendations of the VIth CPC for grant of pay bands, is not sustainable, since in the present case, we are adjudicating the issue which is earlier to the VIth CPC recommendations i.e. grant of benefit of Vth Pay Commission notionally from 01.01.1996 and actually w.e.f. 19.02.2003. When the VIth CPC recommendations and CCS (RP) Rules,2008 have not come into existence, a prospective administrative decision would not be applied retrospectively to deprive the applicant of his rightful claim.
19. Insofar as the organized cadre is concerned, on the analogy that when SOs and PSs of Tribunal could have been treated at par with CSS where accounts cadre is being given the higher pay scales as per Ministry of Finance O.M. dated 28.02.2003, it would be illogical not to have applied the parity in all its implications to the accounts cadre of the CAT, as decided in S.R. Dheers case (supra), which has since been implemented. Accepting the aforesaid proposition, we cannot take a contradictory stand approbating and reprobating simultaneously in case of accounts cadre to deprive the applicant the benefit of O.M. dated 28.02.2003.
20. Assuming that the decision as to organized cadre is genesis for rejecting the request of the applicant for grant of higher pay scale, irrespective of whether the accounts service in the Tribunal is an organized one or not, observations of the Supreme Court in State of Mizorams case (supra) that failure of the government to frame the rules and bring the Engineering service as an organized service cannot be attributable as a fault to the applicants, are relevant to the present case. Since the applicant has been discharging duties with all functional requirements and all pre-conditions satisfied at par with their counterparts, there would be hardly any difference in organized and unorganized service. Insofar as the Government service is concerned, this distinction is irrelevant. What is to be tested in grant of higher pay scale is the doctrine of principles of equal pay for equal work, which is well explained in B. Renjith Kumar and Nehru Yuva Kendra Sangathan (supra) and as there has been no case established by the respondents that the applicant is not discharging functions and duties attached to the post at par with their counterparts, the principle of equal pay for equal work would mutatis mutandis apply for grant of higher pay scale on notional and actual basis based on the O.M. dated 28.02.2003.
21. Moreover, State of Mizorams case (supra) which has been upheld upto the Apex Court level has applicability and the distinguishability shown by the respondents counsel is misconceived. As such, when in all Ministries and Departments, organized accounts cadre gets the higher pay scales while performing identical duties which are being performed by the applicant, we do not find any intelligible differentia which has a reasonable nexus with the object sought to be achieved and such a distinction is not logical but hostile, invidious, and in breach of Article 14 of the Constitution of India. Moreover, R.K. Sharmas case, which decided the aforesaid plea was affirmed by the High Court, which in all fours covers the present issue.
22. Resultantly, O.A. is allowed. Respondents are directed to grant the benefit of upgraded pay scale of Rs.6500-10500 to the applicant on notional basis w.e.f. 01.01.1996 and with actual benefits w.e.f. 19.02.2003 with arrears within a period of two months from the date of receipt of a copy of this order. No costs.
6. The Union of India challenged the aforesaid order of the Tribunal in OA 2951/2003 before the Honble High Court of Delhi vide WP (C) No. 6343/2010 and the High Court, vide its order dated 20.09.2010, dismissed it making the order of this Tribunal subject to the decision of the Apex Court in Unni Menons case (supra) pending before it. The High Court has also observed that this Tribunal reached its conclusion in the order in OA 2951/2003 (supra) primarily on the basis of the judgment of the Apex Court in the case of State of Mizoram (supra). The relevant part of the High Courts judgment is as under:
4. We find no infirmity with the impugned order. No other point has been urged before us. We find no merit in the petition. Dismissed.
13. The aforesaid decision was also upheld by the Apex Court in CC 6923-6925/2005 by an order dated 29.07.2005. Learned counsel states that in all fours, the present issue is covered by the aforesaid ratio. Shri Khatana further relies upon the decision of the Tribunal in OA 969/2006, R.K. Sharma & Ors. Vs. Union of India & Ors. decided on 10.05.2007 whereby on the basis of the judgment in J.R. Chobedar (supra) the applicants Junior Accounts Officers, were allowed to grant the higher pay scale of Rs.6500-10500. While it was challenged before the High Court in WP (C) No. 7231/2007, decided on 29.05.2009, not only the decision of the Tribunal has been upheld but the issue regarding financial constraints has been repelled on the basis of State of Mizoram (supra)
9. Before the Tribunal, the petitioners had opposed the prayers made by the respondents on the ground that only the Accounts Officers of the organized Accounts Cadre were granted the upgraded pay scales and since the Accounts officers of the Tribunal were not members of the organized Accounts cadre their upgradation would not be justified. It was pleaded that as per 6th Pay Commission recommendations, no parity between various posts in organized and unorganized Accounts Cadre were recommended. It was thus pleaded that as the Accounts Officers in the Tribunal had no pre-existing relativity prior to 1.1.2006 with the SOs/PSs of the CSS, their claim was turned down.
10. However, as stated above, the cadre of SOs/PSs has been accepted as an organized cadre in view of the decision of the Tribunal in S.R. Dheers case (supra). It has not been brought to our notice nor it was brought to the notice of the Tribunal that the said judgment stands appealed against by the petitioners before the Apex Court and in any event even if it might have been appealed against unless there is a stay order in that case or in the case of Unni Menon (supra), the decision of the Tribunal, which is based upon the judgment of the Apex Court in the case of State of Mizoram (supra), cannot be faulted with.
11. We agree with the Tribunal that any administrative jurisdiction executed cannot take defence of financial constraints for grant of fundamental right of parity in pay scale, as ruled in Haryana State Minor Irrigation Tube-wells Corporation & Ors. Vs. G.S. Uppal & Ors. (2008 (7) SCC 375). When an administrative authority acts whether it includes the Cadre Controlling Authority or Ministry of Finance, any order passed on administrative side on all fours is to be decided on the touchstone of reasonable object sought to be achieved, as ruled in Noida Entrepreneurs Assn. Vs. Noida & Ors. (2008 (1) SCC (L&S) 372). The equality in law has to prevent hostile discrimination which has no reasonable nexus with the object sought to be achieved, which is an act on administrative side, cannot pass the twin test in the wake of Article 14 of the Constitution of India.
12. Some other observations made by the Tribunal needs notice. We may refer to paragraph 17 of the impugned order, which reads as under:
17. In judicial functioning, if a decision arrived at earlier like in the present case, is sub judice in the Supreme Court, it is open for us to modify the orders in view of subsequent events and changed circumstances. As the decision of the High Court of Karnataka in Unni Menon (supra) ruled against for the purposes of grant of parity of pay, service in Accounts Cadre as an organized one since not having been overturned and modified by the Apex Court, may not hold a valid precedent, but decision in Mizorams case (supra) covers the issue. In the event of a decision arrived in sub judice SLP, law shall take its own course. However, from the stand taken by the respondents, it is clear that denying the pay scale and benefit of O.M. dated 28.02.2003 to the applicant, is solely on the ground that the Accounts Cadre in the Tribunal is not an organized cadre. However, what has been allowed to the Junior Accounts Officers in other Ministries/Central Government Departments as well in Organized Accounts Departments, is the pay scale of Rs.6500-10500. CAT (Staff) (Conditions of Service) Rules, 1985, more particularly Rule 4, provides that the conditions of service of officers and other employees of the Tribunal, including accounts cadre, in the matter of pay and allowances, etc. are to be regulated in accordance with the rules and regulations, as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D of the Central Government, which leads no doubt in our mind that when statutory rules on subordinate legislation have been framed by the Government, the administrative orders would not override it. As such, whatever the pay scales are promulgated for the accounts cadre in other Ministries and Departments, the same would have to be mutatis mutandis adopted in the accounts cadre of the CAT, especially when there is no case made out by the respondents as to the functional requirement of accounts cadre in Tribunal being at variance and distinction in discharge of duties and responsibilities attached to the posts in accounts cadre with that of their counterparts in other Departments and Ministries. It is to be noted that as per Notification dated 17.12.1998 promulgating Central Administrative Tribunal (Staff) (Conditions of Service) Amendment Rules 1998 a JAO has been placed in the pay scale of Rs.5500-9000 but an explanatory memo refers to the CAT (Staff) (Conditions of Service) Rules of 1985 whereas the accounts cadre officers are to be placed and extended the revised pay scale, as recommended by the Vth CPC. Vth CPC would have allowed lesser pay scale but once the pay scales of Junior Accounts Officers have been revised from Rs.5500-9000 to Rs.6500-10500 by the Central Government to their employees, in various departments and Ministries, the same cannot be denied to the applicant as the objection of organized service would have no impediment as what is required under the statutory rules of the Tribunal is parity with the counterparts on extension of pay scales by Government orders. The pay scales have not been accorded to the applicant with a stipulation that the accounts service in the CAT is not an organized service. Rather, the question of unorganized or organized service would have no bearing in granting a higher pay scale to the applicant because accounts cadre in the Tribunal is a regular one governed by notified Government rules which are the essential ingredients and components. As such, the accounts service in the Tribunal has to be treated as a deemed organized cadre for the purposes of pay and allowances.
13. Before us, the only additional submission which has been made by counsel appearing for the petitioner is that once the Tribunal earlier adjourned the matter awaiting the orders in the SLP filed in the Unni Menons case (supra) and in view of the decision of the co-ordinate Bench of the Tribunal in S.R. Dheers case (supra), it was not proper on the part of the Tribunal to have reviewed its own decision. However, we find that the order of the Tribunal is based upon the judgment of the Apex Court and subsequent judgment of the Tribunal passed in the case of S.R. Dheers case (supra) which is with respect to SOs/PSs in the Tribunal itself. The order passed by the Tribunal does not call for any interference at our end except to modify it by clarifying that the implementation thereof would be subject to orders which may be passed by the Apex Court in the SLP against the decision in Unni Menons case. Accordingly, the writ petition is dismissed with no orders as to costs at this stage itself.
7. Thereafter, the respondent CAT granted the benefits arising out of the order of this Tribunal dated 21.04.2010 to the applicant vide its order dated 12.08.2010.
8. As regards Unni Menons case is concerned, the applicant therein was originally appointed as an Upper Division Clerk in the Audit and Accounts Department w.e.f. 10.10.1967. Thereafter, on passing the SAS examination, he was promoted as Section Officer with effect from 24.10.1973 and then as Assistant Accounts Officer w.e.f. 01.04.1987 in the office of Accountant General, Karnataka State, Bangalore. While he was so working, he was selected to work in CAT, Bangalore Bench on deputation basis w.e.f. 21.08.1989 retaining his lien in the parent department. Later on, he was promoted as Accounts Officer w.e.f. 01.04.1992 in his parent cadre based on his seniority and merit and allowed to continue in CAT as Accounts Officer on deputation but later on absorbed in that post w.e.f. 26.03.1994. Meanwhile, the question of parity in pay scales of the Accounts Officers in the Accounts Wing and the Accounts Officers in the Audit Wing of the IA & AD was under consideration of the IV Pay Commission. After detailed study, in para 11.38 of its report, the IVth Pay Commission has recommended that there has all along been parity between the staff in the IA and AD and Accounts Staff of other Departments which has been disturbed by restructuring of IA and AD into two separate cadres, i.e., Audit Cadre and Accounts and Establishment Cadre and giving higher pay scales to a major portion of staff on the audit side. The audit and accounts functions are complementary to each other and are generally performed in many Govt. offices in an integrated manner which is necessary for their effective functioning. The staff in these offices performs functions of internal check and audit suited to the requirements of each organization which are equally important. There is direct recruitment in the scale of Rs.330-560 in all audit and accounts cadres through Staff Selection Commission, Railway Recruitment Boards, etc. from amongst University graduates. Therefore, there should be broad parity in the pay scales of the staff of IA & AD and other accounts organizations. Accordingly, the Commission recommended to give the scale of Rs.1400-2600 to the posts in the pay scale of Rs.475-700 in the organized accounts cadres. Pursuant to the said recommendations of the IV Pay Commission, the Audit and Accounts Officers in the scale of Rs.2375-75-3200-EB-3500 with a minimum of three years regular service were made eligible for promotion in the scale of Rs.2200-75-2800-EB-100-4000. According to the applicant, on his completion of 3 years of service in the cadre of Accounts Officer, he also should have been promoted to the cadre of Senior Accounts Officer w.e.f. 01.04.1995 as persons who were junior to him in his parent cadre were promoted to the post of Senior Accounts Officer on completion of three years of service. However, since the applicant has already been absorbed in CAT, Bangalore w.e.f. 23.03.1994 i.e. about one year prior to his completion of three years of service in his parent cadre and his lien had already been terminated from 26.03.1994, he was not given the higher scale in CAT. The CAT, Principal Bench, New Delhi also took the stand that since the Tribunal did not have the organized Accounts Officers Cadre, the benefit could not be extended to Shri Unni Menon. Hence he has filed OA No. 15/1999 (supra) before the Bangalore Bench of the Tribunal seeking a direction to promote him to the cadre of Senior Accounts Officer with retrospective effect from 01.04.1995 in pursuance of OM No. F.6 (82)/IC/91 dated 22.09.1992 and to grant him the difference of salary in the new cadre forthwith, with interest at the rate of 18% per annum with consequential reliefs. The said OM reads as under:
M.F., O.M. No. F.6 (82)-IC/91, dated 22-9-1992 Promotional grade for Audit/Accounts Officers of Organised Accounts Cadres Consequent upon re-structuring of the Indian Audit and Accounts Department, 80% of the posts of Auditors and Section Officers (Audit) were placed in the higher scale of Rs.425-800 and Rs.650-1,040 respectively with effect from 1-3-1984. On the recommendation of the Fourth Central Pay Commission that there should be broad parity in the pay structure of Accounts and Audit staff, the re-structuring Scheme was extended to the Accounts staff with effect from 1-4-1987. However, the cadres of Audit/Accounts Officers were not restructured.
2. The matter regarding grant of an appropriate scale of pay to the Audit/Accounts Officer has, therefore, been under consideration of the Government for some time past. Keeping in view the duties and responsibilities and the functional needs, it has now been decided to provide a promotional grade in the scale of Rs. 2,200-75-2,800-EB-100-4,000 for Audit/Accounts Officers in IA & AD and other Organized Accounts Cadres, except Railway Accounts Cadre. The number of posts in the promotional scale of Rs.2,200-75-2,800-EB-100-4,000 will be 80% of the sanctioned strength of the respective cadres of Audit/Accounts Officers.
3. The Audit/Accounts Officers in the scale of Rs. 2,375-75-3,200-EB-100-3,500 with a minimum of three years regular service will be eligible for promotion to the scale of Rs. 2,200-75-2,800-EB 100-4,000. The promotions will be made after following the due process of promotion by adopting the principle of seniority-cum-fitness. As the posts in the scale of Rs.2,200-75-2,800-EB-100-4,000 are in the functional promotional grade, benefit of FR 22-I (a) (1) (old FR 22-C) will be admissible on appointment to this scale.
4. The classification of the posts of Audit and Accounts Officers will, however, remain the same, i.e., Group B, even after the promotion to the scale of Rs. 2,200-75-2,800-EB-100-4,000.
5. These orders shall be effective from 1-4-1992. However, the benefit of fixation of pay on notional basis in the promotional scale of Rs. 2,200-75-2,800-EB-100-4,000 may be allowed with effect from 1-4-1987 or from the first of the month following the month in which the officer completed 3 years regular service as Audit/Accounts Officer in the scale of Rs.2,375-75-3,200-EB-100-3,500, whichever is later, subject to the availability of posts in the promotional grade. No arrears of pay will be admissible for the period prior to 1-4-1992.
6. These orders issue in consultation with the Comptroller and Auditor-General of India in so far as these relate to Indian Audit and Accounts Department.
9. The Bangalore Bench in its order dated 01.03.2000 held that the CAT (Accounts Personnel Posts) Recruitment Rules, 1990 clearly show that there is an organized accounts cadre though there is no organized accounts service about which the respondents were trying to make the distinction. The Tribunal further held that according to the said RRs, the highest post available in the Accounts Cadre of the CAT is Deputy Controller of Accounts followed by Accounts Officer, Junior Accounts Officer, Senior Accountant and the Junior Accountant in the said descending order. Therefore, the Accounts Department of the CAT is also to be considered as an organized accounts cadre and the respondents should reconsider the representation of the applicant and pass suitable orders. The relevant part of the said order reads as under:
5. Arguments of both sides are heard and documents are perused.
6. As can be seen from Annexure A-1 in the heading itself Promotional Grade for Audit/Accounts Officers of Organized Accounts Cadres. In that OM throughout this organized accounts cadre are the words used when the learned counsel for the respondents is asked whether the Govt., though he has taken time has defined as to what is the organized accounts cadre, he could not place any material to show as to what is an organized cadre. During the arguments, the respondents have produced the recruitment rules of CAT. The RRs relating to Central Administrative Tribunal (Accounts Personnel Posts) Recruitment Rules, 1990 were also mentioned. Those RRs would clearly show that there are organized accounts cadre though there is no organized accounts service which we feel the respondents are trying to make distinction regarding the non-applicability of the OM on that ground. The RR clearly shows that the highest post available in the accounts cadre is Deputy Controller of Accounts, next one Accounts Officer, the third one Junior Accounts Officer, the fourth one Sr. Accountant and then the Junior Accountant. This would clearly show that CAT has an organized accounts cadre and Annexure A-6 would clearly show the request of the applicant was refused because there is no organized accounts cadre in the CAT which has been repeated in the reply filed. We are not impressed by the stand taken by the respondents in view of the above position and we must hold that the RR clearly shows that the Accounts Cadres are sanctioned with different designations in the CAT. Apart from this, the OM at Annexure A-1 would not make any distinction between an official who previously got the Senior Accounts Officers post while working in any particular office where according to the respondents the organized Accounts Cadres are available and when once he is sent to an isolated post, he would continue to get the same benefit as can be seen from Annexure A-1 and the applicability of Annexure A-1 is not restricted to the place of work of the officials.
7. The learned counsel for the respondents argued that as can be seen from the OM which he has produced it was communicated to 6 units and that OM is meant to apply to those 6 units only. It has to be stated that the subject mentioned in that OM shows that creation of promotional grade for the Audit and Accounts Officers of organized accounts cadres and the body of that OM does not mention that this OM would apply only to those particular units to which this OM was communicated as mentioned in that OM. On the other hand, a reading of that OM would show that it applies generally to all organized accounts cadres. In that view, the argument of the learned counsel for the respondents cannot be accepted.
8. Apart from this, enclosure to Annexure A-4 which is by Govt. of India, Ministry of Commerce dated 10.9.95. This order deals with similar cases where two officers of commerce Department by names, Smt. Dhakshayani Ramalingam and Shri V.K. Gopalakrishnan who were Accounts Officers in the zones of Madras and Cochin were sent on deputation where they were absorbed in the regular service of those zones and those posts of Accounts Officers are also isolated posts. In such cases, the Govt. of India has created promotional posts as prayed by this applicant in this case and in pursuance of this OM at Annexure A-1 those officers were directed to be appointed after following due process by following principles of fitness. This letter would clearly show that at that time the Govt. has not taken the objection that because those officers are from isolated posts and did not belong to the organized accounts cadres, they were not entitled. On the other hand, this benefit was given to those officers. In view of enclosure to Anenxure A-4 when the applicant is also similarly placed, we have to hold that he is also entitled for similar consideration by the Government.
9. Regarding limitation, OA is in time from the date of Annexure A-6 under which the representation of the applicant was rejected. It is also a continuing cause of action. Hence, it cannot be said that this OA is barred by limitation.
10. In view of the above discussion that the Accounts Department in the CAT is also to be considered as an organized accounts cadre, the respondents are directed to reconsider the representation of the applicant and pass suitable orders in the light of the observations made above within a period of three months from the date of receipt of a copy of this order. If the applicant is aggrieved by the orders to be passed by the respondents, he is entitled to approach this Forum to seek redressal of his grievance. The OA is disposed of accordingly. No costs.
10. The Union of India, vide Civil Writ Petition No. 33496/2000, challenged the aforesaid order of the Tribunal dated 01.03.2000 before the High Court of Karnataka and it quashed and set aside the aforesaid order of the Tribunal, vide its judgment dated 12.04.2004 holding as under:
4. The only question that arises for our consideration in this petition is:
Whether the respondent is entitled to be considered for promotion as Sr. Accounts Officer in CAT with effect from 1-4-1995 based on the Official Memorandum dated 23-3-192 bearing No. 2402-GE.II/116-92?
5. Learned ACGSC very strongly submitted that the Tribunal has totally misconstrued the case in coming to the conclusion that CAT also has an organized Account Cadre and, therefore, the respondent is entitled to the relief sought by him. According to him, the question whether CAT has an organized Accounts Cadre or not are questions irrelevant because the respondent having opted for being absorbed as Accounts Officer in CAT with effect from 26-3-1994, the lien he had over the post of Accounts Officer in Accountant Generals office is not available to the respondent to stake claim to any relief that may have been provided by the said O.M to his juniors in the Accountant Generals office.
6. The learned counsel for the respondent, on the other hand, submitted that the O.M applies to the respondent also and the reasoning adopted by CAT for applying the said O.M to the respondent is well founded and, therefore, needs no interference at all by this court.
7. The Central Administrative Tribunal is a separate entity created under a statute and it is not a department of the Central Government. The official memorandum in question is issued for purpose of redisgnating the promotional grade of Audit/Accounts officers in Organized Accounts Cadres as Senior Audit Officer/Senior Accounts Officers consequent upon the creation of promotional grade for 80% of the Audit/Accounts Officers in a different scale. Particular reference is made in the official memorandum itself that it is applicable to Indian Audit and Accounts Department and other organized Accounts Cadres, except Railway Accounts Cadre. At best it could apply to all Central Govt. Departments where thee is an organized cadre and to every establishment under the Central Services. No such redesignation took place in CAT as an outcome of creation of any promotional cadre in the establishment of CAT. There is no possibility of such redesignation taking place in CAT as there is no post of Sr. Accounts Officer in the hierarchy of the Accounts Cadre of the CAT. It has its own cadre and recruitment rules and the field s regards the pay and promotion are covered by a separate rules formulated for that purpose which are called the Central Administrative Tribunal (Accounts Personnel Posts) Recruitment Rules, 1990. Rule 3 of the said Rules governs the number of posts, classification and their scale of pay and it reads:
The number of the said posts, their classification and the scales of pay attached thereto shall be as specified in column 2 to 4 of the said schedule. The classification of posts as contained in columns 2 to 4 of the schedule does not contain any cadre called the Senior Accounts Officer to which the respondents wants to be promoted. There are only five cadres of Accounts Personnel in the CAT viz., Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant. The respondent is in the cadre of Accounts Officer. His promotion under the Rules of the CAT can be only to the next higher cadre of Deputy Controller of Accounts. In these circumstances the official memorandum can have no application to the establishment of CAT at all, nor would it affect the services conditions of the cadre of accountants employed in CAT. In view of the non-applicability of the office memorandum to the establishment of CAT, the respondent cannot seek any benefit under the said official memorandum. The Tribunal has totally misdirected itself in coming to the conclusion that the official memorandum is applicable to CAT also because it has an organized accounts cadre in its ranks.
8. Every Govt. establishment has to have an organized cadre of accountants without which no establishment can function. But that does not mean that the respondent could be promoted to a non-existing cadre when there is no such cadre in its establishment. Nor could it be said that every official memorandum issued by the Central Govt. would cover all establishments irrespective of the fact of its applicability to a given department. The contention of the respondent that if he had continued in his parent department he would have become a Sr. Accounts Officer on the basis of his seniority and, therefore, he is entitled to be promoted as such in the establishment of CAT is totally bereft of any merit. The rules governing his service conditions in the present establishment alone are relevant for the purpose of determining his right for promotion to an higher cadre. In the said view of the matter and in the light of our conclusion that the official memorandum has no applicability to the employees of the CAT, we find that the impugned order passed by the court-below cannot be sustained in law.
11. Unni Menon preferred Civil Appeal No. 7113 of 2005:2011 (2) SCC 378 before the Honble Supreme Court against the final order of the High Court of Karnataka dated 12.04.2004 and it was pending. Later, the Apex Court also considered the facts in Unni Menons case (supra), in its judgment dated 07.01.2011 and observed that Shri Unni Menon joined the Indian Audit and Accounts Department as Upper Division Clerk w.e.f. 10th October, 1967 and on clearing the SAS examination, he was promoted as Section Officer, w.e.f. 24th October, 1973, in the office of Accountant General, Bangalore, Karnataka. He was further promoted as Assistant Accounts Officer w.e.f. 1st April, 1987 by virtue of his seniority and merit. While he was working as Assistant Accounts Officer in the office of the Accountant General, he went on deputation to work in the CAT, Bangalore Bench w.e.f. 21st August, 1989. As the appellant therein was on deputation, his lien was maintained in his parent department, i.e., Accountant General, Karnataka Circle, Bangalore. On the basis of his lien and seniority, he was promoted as Accounts Officer in his parent office, i.e., in office of the Accountant General, Bangalore, w.e.f. 1st April 1992. Thereafter, he was absorbed as Accounts Officer in the CAT w.e.f. 23rd March, 1994. Meanwhile, the Government of India issued a circular vide No. F.6(82)/IC/91 dated 22nd September, 1992 giving promotional grade for Audit/Accounts Officers in IA & AD and other `Organized Accounts Cadres' based on the recommendations of the 4th Pay Commission which is extracted below:
"There has all along been parity between the staff in the IA & AD and Accounts staff and other Departments which has been disturbed by restructuring of IA & AD into two separate cadres viz, Audit Cadre and Accounts and Establishment Cadre and giving higher pay scales to a major portion of staffs on the audit side. The audit and accounts functions are complementary to each other and are generally performed in many government offices in an integrated manner which is necessary for their effective functioning. The Staff in these offices perform functions of internal check and audit suited to the requirements of each organization which are equally important. There is direct recruitment in the scale of Rs. 330-560 in all the audit and accounts cadres through Staff Selection Commission, Railway Recruitment Boards from amongst University graduates. Therefore, in view of this, there should be board parity in the pay scales of the staff of IA & AD and other accounts organizations. Accordingly, it is recommended that the posts in the pay scale of Rs. 475-700 in the organized accounts cadres may be given the scale of Rs. 1400-2600."
The contention of Unni Menon was that in terms of the aforesaid circular, he should have been promoted to the cadre of Sr. Accounts Officer w.e.f. 1st April, 1995 on his completion of three years' of service in the cadre of Accounts Officer in the scale of Rs. 23753500. He has also pointed out that the persons junior to him in his parent department had been promoted on completion of three years' service. Since the nature of duties performed and responsibilities shouldered by him in CAT are identical or very similar to the duties and responsibilities in the parent cadre, he was entitled to parity in designation and pay with his counterparts in the Indian Audit & Accounts Department. However, the Apex Court dismissed the SLP vide its judgment dated 07.01.2011 as stated earlier. The relevant part of the said judgment is as under:
11. It was further observed by CAT that the O.M. dated 22nd September, 1992, has a general application to all Organized Accounts Cadres. Its application cannot be restricted only to some specified cadres. The action of the respondents was held to be arbitrary and discriminatory. This would be evident from the following observations in the order of CAT:-
"Annexure A - 4 which is by Govt. of India, Ministry of Commerce dated 10.09.1995, this order deals with similar cases where two officers of Commerce Department by names, Smt. Dhakshayani Ramalingam and Shri. V. K. Gopalakrishnan who were Account Officers in the zones of Madras and Cochin were sent on deputation where they were absorbed in the regular service of those zones and those posts of account officers are also isolated posts. In such cases, the Government of India has created promotional posts as prayed by this applicant in this case and in pursuance of this O. M. at Annexure A1 those officers were directed to be appointed after following due process by following principles of fitness. This letter would clearly show that at that time the Government has not taken the objection that because those officers are from isolated posts and did not belong to the organized accounts cadres, they were not entitled. On the other hand, this benefit was given to those officers. In view of enclosure to Annexure A4 when the applicant is also similarly placed, we have to hold that he is also entitled for similar consideration by the Government."
12. With the aforesaid observations CAT held that the Accounts Department is also to be considered as an `Organized Accounts Cadre'. The respondents were directed to reconsider the representations of the appellant and to pass suitable orders in the light of the observations made in the order within a period of three months from the date of receipt of a copy of the order.
13. Aggrieved by the aforesaid order of the CAT, the respondents filed a writ petition before the High Court of Karnataka. The Division Bench of the High Court has allowed the writ petition and set aside the impugned order of CAT. The application filed by the appellant before the CAT has been dismissed. Aggrieved by the judgment of the High Court, the appellant is before us in the present appeal.
14. The short question which arises in these proceedings was formulated by the High Court as follows:-
"Whether the respondent is entitled to be considered for promotion as Sr. Accounts Officer in CAT with effect from 1-4-1995 base on the Official Memorandum dated 23.3.1992 bearing No.2402-GE.II/116-92?"
15. Answering the aforesaid question, the High Court held:-
(i) The Central Administrative Tribunal is a separate entity created under statute, is not a department of the Central Government.
(ii) The Official Memorandum in question is issued for the purpose of re-designating the promotional grade of Audit/Accounts Officers in `Organized Accounts Cadres' as Sr. Audit Officer, Sr. Accounts Officer. Consequent upon the creation of promotional grade for 80 per cent of the Audit/Accounts Officer in a different scale.
(iii) The Memorandum specifically states that it is applicable to Indian Audits and Accounts Department and other `Organized Accounts Cadres', except Railway Accounts Cadres.
(iv) Therefore, at best, it could apply to all Central Government departments and every establishment under the Central Services, where there is an organized cadre.
(v) There is no possibility of re-designation of posts in CAT as there is no post of Sr. Accounts Officer in the hierarchy of the accounts cadre of the CAT.
(vi) The cadre hierarchy in CAT is regulated by the Recruitment Rules, 1990.
16. The Division Bench noticed the provision contained in Rule 3 which governs the number of posts, classification and their scales of pay which read as under:-
"The number of the said posts, their classification and the scale of pay attached thereto shall be as specified in column 2 to 4 of the said schedule".
17. We are entirely in agreement with the observations made by the High Court. We may, however, add that the respondent having lost his lien in the parent department w.e.f. 26th March, 1994, can not claim the benefit of the O.M. dated 22nd September, 1992, as by the relevant time, he was borne on the cadre of Accounts Department of CAT. The promotions, if any of junior in the parent department would be of no relevance for consideration of the case of the appellant. The service conditions of the officers of CAT are admittedly governed by the Recruitment Rules, 1990. Schedule 2 of the aforesaid Rules does not include any cadre called the `Sr. Accounts Officer', to which the appellant wanted promotion. In fact, the cadre of accounts personnel in CAT consists of five categories of posts, namely, `Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant'. The appellant was designated as the Accounts Officer at the relevant time. Therefore, his promotion could only have been to the next post of Deputy Controller of Accounts. In view of the above, the O.M. dated 22nd September, 1992 clearly would have no application in the case of the appellant.
18. Learned counsel for the appellant, however, submitted before us that the definition of the term `Organized Accounts Cadre' would include the accounts service in CAT. The appellant cannot be denied the benefit merely because he is occupying an isolated post. Learned counsel further pointed out that in a number of cases, even in the case of isolated posts, the respondents have granted the benefit of O.M. dated 22nd September, 1992 to the officers working on such posts. Since the same benefit had been illegally denied to the appellant, the CAT had correctly applied the principle of `equal pay for equal work' and non- discrimination amongst similarly situated employees of Union of India.
19. We are wholly unimpressed by both limbs of the submissions. It cannot be disputed that CAT is an independent entity created under the Administrative Tribunals Act, 1985. Section 13 sub-section 2 of the aforesaid Act provides that the salaries and allowances and conditions of the service of the officers and other employees of a Tribunal shall be such, as may be specified by rules made by the appropriate governments. Undoubtedly, the Accounts and Personnel Department is governed by the Recruitment Rules, 1990 framed under the Administrative Tribunals Act, 1985, which are independent and self- contained. They could not be intermingled with the Rules of Central Government Departments. Therefore, the examples given by the learned counsel for the appellant relating to an isolated post in the BSF on the basis of the judgment of the Delhi High Court in the case of Union of India & Ors. Vs. J.R. Chobedar, W.P. (C) No. 20065-67 of 2004 decided on 25th January, 2005 would be of no assistance to the appellant.
20. Similarly, the judgment of this Court in the case of State of Mizoram & Anr. Vs. Mizoram Engineering Service Association & Anr. [(2004) 6 SCC 218] would have no application as it related to discrimination with regard to pay revision in the Engineering Department of Mizoram. It was in the context of the submission that the Engineering service in the State was not an organized service, this Court observed that there can be hardly any difference in organized and unorganized service so far as Government service is concerned. We may note here the observations made by this Court in Paragraph 6 of the judgment, which is as under:-
"6. Great stress was laid on the fact that Engineering Service in the State was not an organised service and therefore, it did not have categorisation by way of entrance-level and senior-level posts and for that reason the higher scale of Rs 5900-6700 which was admissible for senior-level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Service as an unorganised service in the State is absence of recruitment rules for the service. Who is responsible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly "No". For failure of the State Government to frame recruitment rules and bring Engineering Service within the framework of organised service, the engineers cannot be made to suffer. Apart from the reason of absence of recruitment rules for the Engineering Service, we see hardly any difference in organised and unorganised service so far as government service is concerned. In government service such a distinction does not appear to have any relevance. Civil service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words "organised service" and "unorganised service". Nothing has been pointed out in this behalf. The argument is wholly misconceived."
These observations clearly show that the Engineering Service had been dubbed as unorganized service as the State had failed to frame the necessary recruitment rules. This Court, therefore, observed that the State Government can not take advantage of its own failure to frame the recruitment rules and bring the Engineering Service within the framework of organized service. For such failure, the Engineers could not be made to suffer. The aforesaid observations have no application to the facts and circumstances of this case.
21. We, therefore, find no merit in the submissions made by the learned counsel for the appellant. In view of the above, the appeal is dismissed.
12. Thereafter, the respondents have issued the impugned Office Order dated 21.07.2011 and refixed the applicants pay with retrospective effect from 01.01.1996 in supersession of their earlier order dated 12.08.2010.
13. According to the learned counsel for the applicant Shri C. Hari Shankar, the applicant has filed a Civil Miscellaneous Peititon No. 14442/2010 in CWP No. 6343 of 2010 before the High Court of Delhi seeking a modification/clarification of its order dated 20.09.2010 in the interest of justice that the Unni Menons case (supra) is based on a different O.M. dated 22.09.1992 whereas the present case is based on O.M. dated 28.02.2003 involving altogether a different point and hence the outcome of Unni Menons case (supra), whatever it might be, cannot govern the present case. However, the High Court, vide its order dated 20.10.2010, dismissed it as withdrawn on the basis of request of the applicant herein so as to enable him to seek intervention before the Supreme Court in the SLP filed by Unni Menon (supra). Thereafter, the applicant herein moved IA No. 3 of 2011 in Civil Appeal No. 7113 of 2005 before the Honble Supreme Court in Unni Menons case (supra) contending that his case was different from that of Unni Menon (supra). However, the Apex Court decided Unni Menons case (supra) vide judgment dated 07.01.2011 without passing any orders. Later, the Apex Court, vide order dated 8.12.2011, dismissed the aforesaid IA No. 3 of 2011 reserving liberty to the applicant to pursue any other remedy, if otherwise available to him in law. It is pursuant to the said liberty, he has filed this OA challenging the office order dated 21.07.2011 issued by the Principal Bench of this Tribunal.
14. The further contention of Shri C. Hari Shankar is that the judgment in Unni Menons case (supra) does not justify reversal of the benefits already granted to the applicant consequent upon the order passed by this Tribunal dated 21.4.2010 in OA 2951/2003 (supra). Though the applicant has, by IA No. 3 of 2011 (supra) sought a decision from the Supreme Court on the said issue but the Supreme Court was pleased to direct the applicant to pursue alternate remedy, if available to him in law. According to the learned counsel, the said order of the Apex Court clearly indicates that the applicants grievance merits further examination.
15. The learned counsel for the applicant has further stated that the question as to whether the effect of the judgment dated 21.04.2010 stands effaced by the judgment of the Honble Supreme Court in Unni Menon has been answered in paras 5,6,8,12,17 and 20 of the said judgment itself and a reading of those paras would reveal the following factual position:
(i) the case in Unni Menon was for promotion to the cadre of Senior Accounts Officer on completion of 3 years of service in the cadre of Accounts Officer as persons junior to him in his parent department had been so promoted.
(ii) Unni Menon based his claim on a Circular dated 22.09.1992 giving promotional grade to Accounts Officers of organized Accounts cadres.
(iii) The Honble High Court rejected Unni Menons claim on the ground that this Honble Tribunal did not have an organized Accounts Cadre, and, therefore, the OM dated 22.09.1992 was not applicable,
(iv) The Honble Supreme Court accepted this legal position, holding that there was no cadre of senior accounts officer in the RRs, as the cadre of accounts personnel in this Honble Tribunal consisted of only Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officers, Senior Accountant and Junior Accountant.
the next promotion of Unni Menon could, therefore, only have been to the next post of Deputy Controller of Accounts and in such circumstances, OM dated 22.9.92 would, obviously, have no application to him.
16. He has further pointed out that it is self evident that the findings of the Honble Supreme Court in Unni Menon (supra) cannot adversely affect the applicants case at all, inasmuch as,
(i) the applicant is not claiming promotion to a non-existent post,
(ii) neither is the applicant claiming the benefit of any circular which is dependent on the existence of an organized accounts cadre,
(iii) the case of the applicant was one of parity in pay with persons holding similar posts in other departments of the Central Government, and
(iv) the OM dated 22.9.92, the applicability of which formed the crux of the controversy in Unni Menon (supra) has consequently no application whatsoever.
17. Another submission of the applicants counsel is that the Honble Supreme Court, in para 20 of its judgment in Unni Menon (supra) reproduced the same para of State of Mizoram (supra) as has been reproduced by this Tribunal in para 13 of its order dated 21.04.2010 (supra) holding that the said judgment would have no application to the case of Unni Menon, as it related to discrepancy with regard to pay revision, in which context, the Honble Supreme Court held that there could hardly be any difference between organized and unorganized services. The view expressed by this Honble Tribunal in its judgment dated 21.04.2010 in OA 2951/2003 (supra), therefore, stands endorsed by the judgment in Unni Menon (supra) which, therefore, supports, rather than defeats, the applicants case.
18. He has also stated that the impugned Office Order dated 21.07.2011 has been issued mechanically on the premise that dismissal of Unni Menons case would automatically result in setting aside of the order of this Tribunal dated 21.04.2010 in the applicants case. According to him, it is an entirely erroneous assumption as the High Court, in its order dated 20.09.2010, only made implementation of the said judgment of the Tribunal subject to orders which were to be passed in Unni Menon (supra) and, therefore, the relief granted to the applicant could be reversed only if the judgment in Unni Menon (supra) operated to justify such reversal. He argued that as demonstrated above, there is nothing in the judgment in Unni Menon (supra) which could operate to justify reversal of the benefits granted to the applicant consequent upon the judgment dated 21.04.2010 passed by this Tribunal in OA 2951/2003 (supra). The said reversal, as effected by the impugned Office Order, is, therefore, ex facie, arbitrary and illegal. Further, he has mentioned that, presently, all other posts in Accounts cadre of this Tribunal except the Accounts Officer are receiving the same pay as is being paid to the corresponding posts in other departments of the Central Government, and only the Accounts Service is being discriminated. For example, the post of Deputy Controller of Accounts both in Central Government Offices and this Tribunal has been placed in scale of pay of Rs. 10000-15200 with effect from 1.1.1996 and in the scale of Rs. 15600-39100 with effect from 1.1.2006. Similarly, the scale of pay of Junior Accounts Officer with effect from 1.1.1996 and 1.1.2006 are Rs.5500-9000 and Rs.9300-34800 respectively. The scale of pay of Senior Accountant w.e.f. 1.1.1996 and 1.1.2006 are Rs.4500-7000 and Rs.5200-20200 respectively. Again the Junior Accountants were having the scale of Rs.4000-6000 and Rs.5200-20200 with effect from 1.1.1996 & 1.1.2006 respectively.
19. The learned counsel has further submitted that the applicant is also supported by Rule 4 of the CAT (Staff) (Conditions of Service) Rules, 1985 which requires the conditions of service of officers and other employees of the Tribunal in matters of, inter alia, pay to be regulated in accordance with the rules and regulations applicable to officers and employees belonging to the corresponding Group/Scales of pay in the Central Government. Therefore, there is no case for altering/reversing the benefits given to the applicant consequent upon the earlier order of this Tribunal dated 21.04.2010 in OA 2951/2003 and the impugned Office Order dated 21.07.2011 has to be quashed as wholly misconceived.
20. The respondents in their reply have submitted that the applicant had filed OA No. 2951/2003 (supra) claiming the benefit of higher pay scales as applicable to the organized accounts cadre notionally w.e.f. 01.01.1996 and with actual benefit w.e.f. 19.02.2003 and it was allowed by CAT vide order dated 21.4.2010. The said orders were challenged by the respondents before Honble High Court of Delhi in WP (C) No. 6343/2010 (supra). The Honble High Court, vide judgment dated 20.09.2010, without quashing the order passed by Tribunal, modified it by saying that the implementation thereof would be subject to orders which may be passed by Apex Court in SLP against the decision of Karnataka High Court in Unni Menons case (supra). However, on filing the contempt petition by the applicant, the aforesaid order of this Tribunal was implemented and his pay was refixed in upgraded scales provisionally and arrears paid subject to outcome of SLP in Unni Menons case (supra). However, following the dismissal of SLP in the case of Unni Menon by the Supreme Court, the pay of the applicant has been refixed vide impugned order dated 21.07.2011 and, therefore, the overpayment made to the applicant as per the upgraded pay scales was ordered to be recovered. According to them, the reliefs sought by both the applicant and Shri Unni Menon were same as both of them were seeking parity of pay scales with the employees of the organized Accounts cadre of the Central Government Departments on the premise that the duties and responsibilities shouldered by them in CAT are identical or very similar to the duties and responsibilities of their counterparts in organized Accounts Cadre. However, the Apex Court did not grant the said relief in the case of Unni Manon wherein it observed clearly that Accounts Personnel of CAT are governed by Rules, 1990 framed under the Administrative Tribunals Act, 1985 which are independent and self contained and they could not be intermingled with the Rules of the Central Government. Moreover, the Supreme Court in the case of Shri Unni Menon agreed entirely with the observations of High Court of Karnataka in WP (C) No. 6343/2010 (preferred by the Central Government against the judgment dated 21.04.2010 in OA 2951/2003 filed by the applicant) that the Central Administrative Tribunal is a separate identity created under the statute and it is not a Department of the Central Government. Hence, the applicant has no right to claim pay parity with the pay scales of organized Accounts Cadre of the Central Government.
21. Further, the pay scale of Accounts Officers in CAT was lower than that of the Accounts Officers in organized Accounts Cadre. Before the implementation of the 6th Pay Commission the Accounts Officer in CAT were in lower pay scale i.e. Rs.7450-11500 whereas the Accounts Officers of the organized Accounts cadre were getting their pay in the scale of Rs.7500-12000. As per CCS (RP) Rules, 2008 also, the Accounts Officers of the Organized Accounts Cadre have been placed in the scales of Rs.8000-13500 with grade pay of Rs.5400/- in the PB-2 and by the acceptance of the request of the applicant would place the Accounts Officers of the CAT in a higher pay scale of PB-3 with grade pay of Rs.5400/- which is higher than the pay of the Accounts Officers of the organized Accounts Cadre and it would not be justified.
22. They have also stated that 6th Pay Commission in para 3.8.5 of its report has not considered any parity between various posts in organized and unorganized Accounts cadre. On the other hand, it recommended that the existing relativity between the Accounts related posts outside organized Accounts cadres and ministerial posts shall be maintained. Accordingly, as per CCS (RP) Rules, 2008, the accounts staff belonging to unorganized accounts cadres shall be extended the corresponding replacement pay band and grade pay. Therefore, the Accounts officers in the CAT have been correctly placed in the replacement pay scale of PB-2 with grade pay of Rs.4600/- as per recommendation of the 6th Central Pay commission. Again, according to them, the Accounts Officers in CAT had no pre-existing relativity prior to 01.01.2006 with the Section Officers/Private Secretaries/Court Officers in CAT as well as Section Officers/Private Secretaries of the Central Secretariat. According to the 6th Central Pay Commission, the Accounts staff in Group `B and `C in the Central Government are mainly concentrated in organized cadres in the Indian Audit and Accounts Department under the Comptroller General of Defence Railways, the organizations of the Controller General of Defence Accounts under the Ministry of Defence and the Controller General of Accounts under the Ministry of Finance and the Accounts and finance Wings of Department of Post & Department of Telecommunication. The conditions of service of the accounts staff in the organized Accounts Departments recruitment and promotion rules etc. are broadly patterned on those applicable in the Audit and Accounts Department under the Comptroller and Auditor General of India, from which these departments were carved out progressively over a period of time based on the policy of decentralization of accounting functions. In the case of Accounts staff of the CAT, there is nothing similar to the organized services of the Accounts in the Central Government except the designation. As per the 6th Pay Commission, personnel belonging to the organized accounts cadre not only have difficult duties but their skill requirement is also higher. The personnel belong to organized accounts cadres have to compulsorily pass departmental examination like SAS for promotion. Such is not the case for posts relating to accounts work outside the organized accounts cadres. It is, therefore, not possible to draw any comparison between the posts in accounts cadres and those outside it. Thus, principle of equal pay for equal work is not applicable in the case of the applicant. According to the respondents, it is clear from the above submission that the averment of the applicant that there is a disparity in pay scales of Accounts Cadre of CAT with their counterparts in Central Government Departments, is incorrect. They have also submitted that the Central Administrative Tribunal is a separate entity. Hence, the applicant has no right to claim pay parity with the pay scales of organized Accounts Cadre of the Central Government.
23. We have heard the learned counsel for the applicant Shri C. Hari Shankar and the learned counsel for the respondents Shri Sandeep Jha for Shri H.K. Gangwani. We have given our anxious consideration to the submissions made by both parties. We have also very carefully perused the earlier order of this Tribunal dated 21.4.2010 in OA No.2951/2003 (supra) filed by the applicant which has been allowed and the order of the High Court of Delhi in CWP No. 6343/2010 dated 20.9.2010 holding that the aforesaid order of this Tribunal does not call for any interference except modifying it by clarifying that the implementation thereof would be subject to orders which may be passed by the Apex Court in the SLP in Unni Menons case rendered by this Tribunal on 1.3.2000 in OA No.15/1999 (supra) and the judgment of High Court of Karnataka dated 12.4.2004 in W.P. No.33496/2000 (S.CAT) (supra). We agree with the submissions of Shri Hari Shankar, the learned counsel for the applicant that there is hardly any similarity between the case of the applicant and that of Shri Unni Menon except for the fact that both of them have been working in CAT, one in its Principal Bench and the other in its Bangalore Bench and both of them were seeking higher pay scales. But both of them have approached the Principal Bench of the CAT and the Bangalore Bench vide OA 2951/2003 (supra) and OA No.15/1999 (supra) respectively, for entirely different reasons.
24. Shri Unni Menon originally belonged to the Indian Audit and Accounts Department and while he was working as Assistant Accounts Officer in the Office of the Accountant General, Karnataka, he went on deputation to CAT, Bangalore Bench w.e.f. 21.8.1989. So long as his lien was maintained in his Parent Department, he was given all promotions along with his colleagues there. Accordingly, when he was promoted as Accounts Officer in his parent department w.e.f. 1.4.1992, he was given the same promotion in CAT Bangalore Bench also. However, he continued to claim promotions as well as other financial benefits as granted to his erstwhile colleagues in his Parent Cadre even after he got himself absorbed in CAT Bangalore Bench w.e.f. 26.3.1994. Meanwhile, the Government of India, Ministry of Finance have issued Circular dated 22.9.1992, according to which consequent upon restructuring of Indian Audit and Accounts Department, 80% of the posts of Auditors and Section Officers (Audit) were placed in the higher scales of Rs.425-800 and Rs.650-1040 respectively with effect from 01.03.1984. On the recommendations of the 4th Central Pay Commission that there should be broad parity in the pay structure of Accounts and Audit Staff, the restructuring Scheme was extended to the Accounts Staff with effect from 01.04.1987. By the aforesaid Circular dated 22.09.1992, the Government has decided to provide a promotional grade in the scale of Rs.2200-75-2800-EB-100-4000 for Audit/Accounts Officers in IA and AD and other Organized Accounts Cadres. Accordingly, when the Accounts Officers in his parent department were promoted as Senior Accounts Officers w.e.f. 1.4.1995 in the scale of pay of Rs.2200-75-2800-EB-100-4000 as applicable to their counter parts in the Accounts Cadre, he has also made his claim for similar promotion and pay scale attached to the post of Senior Accounts Officer on the ground that he was performing the same duties and responsibilities in CAT. The Bangalore Bench of this Tribunal allowed his claim vide its order dated 1.3.2000 in OA No. 15/1999 (Supra). The Tribunal held that since the OM dated 22.9.1992 is with regard to Promotional Grade for Audit/Accounts Officers of Organized Accounts Cadres and the Tribunal has an Organized Accounts Cadre though there is no Organized Accounts Service, the respondents could not have held that the said OM was not applicable. Therefore, the Tribunal held that Accounts Department in the CAT is also to be considered as an Organized Accounts Cadre. However, the High Court of Karnataka before which the aforesaid order of the Tribunal was challenged vide CWP NO.33496/2000, held vide order dated 12.4.2004 (Supra) that the only question that has arisen for its consideration in the said petition was whether the Respondent was entitled to be considered for promotion as Sr. Accounts Officer in CAT with effect from 1.4.1995 based on the Memorandum dated 23.3.1992 or not. After detailed discussion, the High Court held that the aforesaid Memorandum is not applicable in the case of CAT as the same was issued for the purpose of re-designating the promotional grade of Audit/Accounts Officers in Organized Accounts Cadres and no such re-designation took place in the CAT. Further, the Central Administrative Tribunal (Accounts Personnel Posts) Recruitment Rules, 1990 does not have any post called Senior Accounts Officer. Therefore, according to the High Court, the Tribunal had totally misdirected itself in coming to the conclusion that the Memorandum dated 23.3.1992 was applicable to CAT also because it has an Organized Accounts Cadre in its ranks. It has also held that the contention of the Respondent that if he had continued in his parent department, he would have become a Sr. Accounts Officer on the basis of his seniority and, therefore, he was entitled to be promoted as such in the establishment of CAT was totally bereft of any merit.
25. The Apex Court considered the aforesaid judgment of the High Court of Karnataka and dismissed the appeal against the same filed by the Appellant Unni Menon. While entirely agreeing with the observations made by the High Court in its judgment, the Apex Court added that the Respondent having lost his lien in the parent department with effect from 26.3.1994 cannot claim the benefit of OM dated 22.9.1992, as by the relevant time, he was borne on the cadre of the Accounts Department of CAT. The Apex Court also rejected the submission of the Appellant that just because he was occupying an isolated post in CAT, he cannot be denied the benefit of OM dated 22.9.1992, as in the case of an isolated post in BSF, similar benefits have been given on the basis of judgment of the Delhi High Court in Union of India Vs. J.R. Chobedar (W.P.C No.20665-67 of 2004 decided on 25.1.2005. On the other hand, the Apex Court held that in terms of Section 13 (2) of the Administrative Tribunals Act, 1985, the salaries and allowances and conditions of service of the officers and other employees of the Tribunal shall be such, as may be specified by rules made by the appropriate government and undoubtedly, the Accounts and Personnel Department is governed by the Recruitment Rules, 1990 framed under the Administrative Tribunals Act, 1985, which are independent and self- contained and they could not be intermingled with the Rules of Central Government Departments. The Apex Court has also held that its judgment in State of Mizoram Vs. Mizoram Engg. Service Association (2004) 6 SCC 218 has no application in the case of the appellant as the observations made therein were in the context of the submission that the Engineering Service in the State was not an organized service.
26. In the case of the Applicant, he has not been claiming promotions in CAT at par with his erstwhile colleagues in his parent cadre. He is also not claiming any benefit of OM dated 22.9.1992 as in the case of Unni Menon (Supra). Rather, the said OM has nothing to do with the case of the applicant. On the other hand, as in the case of Unni Menon and as held by the Apex Court in his case, the applicant is also to be governed by the rules made in exercise of the powers conferred by Section 13 (1) and (2) of the Central Administrative Tribunals Act, 1985. The said section is reproduced as under:-
13. Staff of the Tribunal.
(1) The appropriate Government shall determine the nature and categories of the officers and other employees required to assist a Tribunal in the discharge of its functions and provide the Tribunal with such officers and other employees as it may think fit.
1[(1A) The officers and other employees of a Tribunal shall discharge their functions under the general superintendence of the Chairman.] (2) The salaries and allowances and conditions of service of the officers and other employees of a Tribunal shall be such as may be specified by rules made by appropriate Government.
As already examined earlier in this order, the CAT (Accounts Personnel Posts) Recruitment Rules, 1990 have been enacted to regulate method of recruitment to Accounts Personnel posts in the Central Administrative Tribunal. However, the Government derives power to make rules regarding the salaries and allowances and conditions of services of the officers and other employees of a Tribunal under sub-section (2) of Section 13 from Section 36 of the Administrative Tribunals Act, 1985 which provides as under:-
36. Power of the appropriate Government to make rules.
The appropriate Government may, by notification, make rules to provide for all or any of the following matters, namely:-
(a) the financial and administrative powers which the Chairman of a Tribunal may exercise over Benches of the Tribunal under section 12;
(b) The salaries and allowances and conditions of service of the officers and other employees of a Tribunal under sub-section (2) of section 13; and
(c) any other matter not being a matter specified in section 35 in respect of which rules are requires to be made by the appropriate Government. It is under the above provision that the Central Administrative Tribunal (Staff) (Conditions of Service) Rules, 1985 have been notified. Rule 3 of the said Rules provides as under:-
3. Staff of the Tribunal.
The nature and categories of the officers and other employees of the Tribunal and the scale of pay attached thereto shall be as specified in the Schedule appended to these rules Rule 4 separately deals with conditions of service and it says that it was to regulate as are for the time being applicable to officers and employees belonging to Group `A, Group `B, Group `C and `D (in the Government of India). The said Rule is as under:-
Conditions of service. The conditions of service of the officers and other employees of the Tribunal in matters of pay, Allowances, Leave, Provident Fund, age of superannuation, pension and retirement benefits, medical facilities and other conditions of service, shall be regulated in accordance with such rules and regulations as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C and D, as the case may be, of the corresponding scales of pay stationed at those places.
SCHEDULE S.No. Name of the post @Scale of pay
1. Registrar (Principal Bench) Rs.5900-6700
2. Registrar (Additional Benches Bangalore/Madras) Rs.5100-5700*
3. Registrar (other Benches) Rs.4500-5700
4. Financial Adviser and Chief Accounts Officer Rs.4500-5700
5. Joint Registrar Rs.3700-5000
6. Deputy Registrar Rs.3000-4500
7. Deputy Controller of Accounts Rs.3000-4500
8. Accounts Officer Rs.2375-3500
9. Section Officer Rs.2000-3500
10. Court Officer Rs.2000-3500
11. Private Secretary Rs.2000-3500
12. Legal Draftsman Rs.2000-3500
13. Librarian Rs.2000-3500
14. Personal Assistant Rs.2000-3200
15. Hindi Translator Rs.1640-2900
16. Junior Accounts Officer Rs.1640-2900
17. Assistant Rs.1400-2600
18. Court Master Rs.1400-2600
19. Stenographer Rs.1400-2600
20. Junior Librarian Rs.1400-2600
21. Senior Accountant Rs.1400-2300
22. Junior Accountant Rs.1200-2040
23. UDC Rs.1200-2040
24. Junior Stenographer Rs.1200-2040
25. L.D.C. Rs.950-1500
26. Hindi Typist Rs.950-1500
27. Staff Car Driver Rs.950-1400
28. Photocopier Rs.950-1400
29. Despatch Rider Rs.950-1400
30. Gestener Operator Rs.950-1400
31. Senior Library Attendant Rs.950-1400
32. Junior Library Attendant Rs.800-1150
33. Daftary Rs.775-1025
34. Jamadar Rs.775-1025
35. Peon Rs.750-940
36. Safaiwala Rs.750-940
37. Chowkidar Rs.750-940
38. Mali Rs.750-940 @The scale of pay corresponds to similar scale under the Central Government.
27. It is under the aforesaid provisions of the Act that the Central Administrative Tribunals (Accounts Personnel Posts) Recruitment Rules, 1990 have been framed. Its schedule contains the names of the posts, their number, classification and scale of pay which are as under:-
S. No. Name of Posts No. of posts Classification Scale of pay
1. Deputy Controller of Accounts 01 General Central Service Group (A) Gazetted. Rs.3000-4500 (Revised to Rs. 10000-325-15200)
2. Accounts Officer 16 General Central Service Group (B) Gazetted. Rs.2375-3500 (Revised to Rs. 7450-225-11500)
3. Junior Accounts Officer 16 General Central Service Group (B) Non-Gazetted. Rs.1640-2900 (Revised to Rs. 5500-175-9000)
4. Senior Accountant 16 General Central Service Group (C) Non Gazetted. Rs.1400-2600 (Revised to Rs. 4500-125-7000)
5. Junior Accountant 15 General Central Service Group (C) Non-Gazetted. Rs.1200-2040 (Revised to Rs. 4000-100-6000) It is seen that when the Rules 1990 have been made, the same pay scales prescribed for the Rules 1985 have been maintained. In other words, the pay scales prescribed in Rules 1990 are also the ones applicable to officers and employees belonging to Group A, Group B, Group C and Group D as the case may be and from the very inception of the CAT, the pay scales of its officers and staff are at par with the corresponding Group A, B, C and D officers and staff. So far, no rules contrary to the aforesaid provisions contained in the 1985 Rules and the 1990 Rules have been enacted by the CAT. Therefore, there has been parity in the pay scales of the various posts in the CAT with the corresponding Groups A, B, C and D posts in the Government of India. It is for the said reason that this Tribunal in its earlier order dated 21.4.2010 in OA 2951/2003 (supra) noted the submission of the applicant that when pay scales of the corresponding posts in the Central Government Offices have been upgraded, employees of the CAT in the corresponding posts cannot be denied the same. It was again for the same reason that parity in the pay scales of SOs and PSs in CAT has been established vide another order of the Tribunal in S.R. Dheers case. The relevant part of this Tribunals order in OA No. 2951/2003 (supra) is reproduced as under:-
9. Learned counsel for the applicant states that as per the notified Rules, the CAT has its own separate accounts service having the sanctioned posts of Deputy Controller of Accounts, Accounts Officer, Junior Accounts Officer, Senior Accountant and Junior Accountant. As per GSR 825 (E) dated 31.10.1985, Central Administrative Tribunal (Staff) (Conditions of Service) Rules, 1985, provided that the conditions of service of the officers and other employees of the Tribunal in matters of pay and allowances shall be regulated in accordance with such rules and regulations as are for the time being applicable to officers and employees belonging to Group A, Group B, Group C as well as Group D, as the case may be, of the corresponding scales of pay stationed at those places. Learned counsel further states that when upgraded pay scales have been made applicable to all Central Government offices, CAT being one such organization, the employees of CAT in corresponding grades cannot be denied the same benefit as it will be an invidious discrimination with hostility. Learned counsel would contend that once when there is accounts cadre in CAT with duly notified rules, the same has to be treated as an organized cadre and rightly the co-ordinate Bench of the Tribunal in Unni Menons case (supra) ruled the same. Though the High Court of Karnataka had overturned the decision of the Tribunal in Unni Memon (supra), but the SLP is pending and the law will take its own course.
10. Learned counsel has subsequently stated that once the parity of SOs and PSs with CSS/CSSS has been established in S.R. Dheers case (supra), the same would mutatis mutandis apply to the accounts cadre of the CAT and the higher pay scales cannot be denied to the applicant as Junior Accounts Officer.
28. Since the issue involved in Unni Menons case was entirely different, neither the Bangalore Bench of this Tribunal or the High Court of Karnataka or the Apex Court had the opportunity to consider the issue involved in this case. However, in the context of the arguments of the learned counsel for the parties in both cases, this Tribunal in both orders engaged itself regarding the existence of an organized accounts service in the CAT even though it was not an essential factor to decide the issues raised in the respective OAs. Based on the judgment of the Apex Court in State of Mizoram (supra), this Tribunal held that when the Recruitment Rules are already existing to govern the various posts in the CAT, the accounts service in CAT has to be treated as an organized service. The aforesaid view of this Tribunal has also been upheld by the Karnataka High Court in Unni Menons case when it stated that every Government establishment has to have an organized cadre of accounts without which no establishment can function. At this stage it is appropriate to extract the relevant part of the Tribunals order in OA No. 2951/2003 (supra) which is reproduced as under:-
11. Learned counsel has brought to our notice the case of State of Mizoram (supra) where the higher pay scales were denied on the ground that Engineering Service in the State was not an organized service. The Apex Court in the aforesaid case ruled as follows:
`6. Great stress was laid on the fact that Engineering Service in the State was not an organized service and therefore, it did not have categorization by way of entrance level and senior level posts and for that reason the higher scale of Rs. 5900-6700 which was admissible for senior level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Serv-ice as an unorganized service in the State is absence of recruitment rules for the serv-ice. Who is responsible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly 'No'. For failure of the State Government to frame recruitment rules and bring Engineering Service within the frame-work of organized service, the engineers can-not be made to suffer. Apart from the rea-son of absence of recruitment rules for the Engineering Service, we see hardly any dif-ference in organized and unorganized serv-ice so far as Government service is con-cerned. In Government service such a dis-tinction does not appear to have any rel-evance. Civil Service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words 'organised service' and 'unorganised service'. Nothing has been pointed out in this behalf. The ar-gument is wholly misconceived.
12. If one has regard to the above, having failed to declare the accounts service of the Tribunal as organized service, which is not only regular accounts service but also governed by the notified rules, first of all, it has to be treated as an organized service.
The Honble High Court of Karnataka has also very clearly held in its order in Unni Menons case dated 12.4.2004 that the only question they considered therein was whether Shri Unni Menon was entitled to be considered therein for promotion as Sr. Accounts Officer in CAT with effect from 1.4.1995 based on the Memorandum dated 22.9.1992. The High Court has also considered the argument of the petitioner Union Government that the question whether CAT has an organized Accounts Cadre or not, but it held that it was irrelevant in the said case because the respondent having opted for being absorbed as Accounts Officer in CAT w.e.f. 26.3.1994 and he had no lien over the post of Accounts Officer in the parent office, he cannot stake any claim for further promotion in the parent office. But at the same time, the High Court observed that every Government establishment has to have an organized cadre of accounts without which no establishment can function. The Apex Court has also observed that its judgment in State of Mizoram (supra) has no application in Unni Menons case as it related discrimination with regard to pay revision in the Engineering Department of Mizoram. It was in that context the Apex Court has observed that there can be hardly any difference in organized and unorganized service so far as Government is concerned.
29. The Honble High court of Delhi also in its order dated 20.09.2010 in Writ Petition (Civil) No. 6343/2010 (supra) held that the order of this Tribunal dated 21.04.2012 in OA 2951/2003 does not call for any interference. However, it clarified that the implementation of the aforesaid order would be subject to orders which may be passed by the Apex Court in the SLP against the decision of Unni Menons case. The Apex Court has, in fact, not ordered/observed any thing contrary to the findings of this Tribunal in OA 2951/2003 (supra) or the order of the High Court in Writ Petition (Civil) No. 6343/2010 (supra). Therefore, the observation of the High Court that implementation of the order of this Tribunal dated 21.04.2010 shall be subject to the outcome of Unni Menons case cannot be read beyond it and it cannot be mechanically applied. As stated earlier, admittedly, the Apex Court in Unni Menons case was considering the only question whether the appellant therein was entitled for promotion in his parent cadre even after he was absorbed in CAT and lost his lien in his parent department.
30. In our considered view, the Respondent in the case has issued the impugned Office Order dated 21.07.2011 without application of mind. Just because the Honble High Court has made an observation in its order dated 20.09.2010 that the implementation of the order of this Tribunal dated 21.04.2010 would be subject to the orders which may be passed by the Apex Court in the SLP against the decision in Unni Menons case, and the Apex Court has later on dismissed the said SLP on 07.01.2011, the Respondent could not have, in a mechanical manner, passed the impugned Office Order without giving any reason on merit for refixing the pay of the applicant as the aforesaid observation made by the High Court was not on considering the merit of the case in Unni Menons case but only on the additional submission made by the counsel appearing for the petitioner that this Tribunal had adjourned the matter awaiting the orders in the SLP filed in the Unni Menons case (supra). In conclusion, we hold that claim of Shri Unni Menon in his case before the Bangalore Bench of CAT, High Court of Karnataka and the Supreme Court was that even after he got absorbed in CAT Bangalore, he should be given promotion in CAT Bangalore at par with his erstwhile colleagues in his parent office in the Audit and Accounts Department in terms of the M/o Finance OM dated 22.09.1992 regarding promotional grade for Audit/Accounts Officers of Organized Accounts Cadres which was rejected by both the High Court of Karnataka and the Apex Court. On the other hand, the claim of the Applicant before both this Tribunal and the High Court of Delhi is that he should have been given the benefit of the OM dated 28.02.2003 issued by the Govt. of India, Department of Expenditure, regarding Pay Scales for the Staff belonging to the organized Accounts Department on the ground that the pay scales of the Accounts Staff of the CAT has always been having the parity with the corresponding officers belonging to Group `A, Group `B and Group `C and `D in the Government of India as per the service conditions statutorily fixed in terms of the CAT Staff (Conditions of Service) Rules, 1985 and the CAT (Accounts Personnel Posts) Recruitment Rules, 1990 enacted on the basis of the former rules. Therefore, the earlier order of this Tribunal dated 21.04.2010 in OA 2951/2003 (supra) as upheld by the High Court of Delhi, vide its order dated 20.09.2010 in CWP No. 6343/2010 (supra), does not get effaced by the judgment of the Supreme Court in Unni Menons case dated 07.01.2011.
31. In view of the above facts and circumstances of this case, we allow this OA. Consequently, we quash and set aside the impugned Office Order dated 21.07.2011 by which the applicants pay has been re-fixed. We also quash and set aside the decision of the Respondents to effect recovery from his salary on the basis of the aforesaid office order. Consequently, we restore the fixation of his pay made earlier vide order dated 12.08.2010 and direct the Respondent No. 2 to refund the amount already recovered from his pay from August, 2011 and to pass appropriate orders immediately, but in any case within a period of one month from the date of receipt of a copy of this order. There shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) `SRD