Delhi High Court
Union Of India (Uoi) vs Suresh Kumar Sharma And Ors., Jr. ... on 31 May, 2002
Author: A.K. Sikri
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. Unions of India which is the petitioner in the instant case feels aggrieved by the judgment and Order dated 13th September, 2000 passed by the Central Administrative Tribunal, Principal bench, New Delhi in Original Application No. 2249/99. This Original Application was filed by the respondent herein seeking parity in pay scales with Data Entry Operators (hereinafter referred to as DEOs, for short) in other Ministries/Departments in the revised scale of pay of Rs. 1600-2600/- w.e.f. 1st January, 1986. The Tribunal by reason of the impugned judgment has allowed the said Application holding that the respondents herein are entitled to the aforesaid revised pay scales w.e.f. 1st January, 1986 at par with Data Entry Operators (hereinafter referred to as DEOs, for short) in accordance with O.M. dated 11th September, 1989. Directions were issued to the petitioner to grant the same pay scale to the respondents here w.e.f. 1st January, 1986. However, the respondents are not granted arrears being difference in the pay scale w.e.f. 1st January, 1986 but only fixation of revised pay scale w.e.f. 1st January, 1986.
2. Before proceeding to take note of challenge ofthe Union of India to the impugned judgment anddealing with the same, it would be appropriate to takestock of few facts. It would also be appropriate totake note of the reasons given by the Tribunal in theimpugned judgment to appreciate as to how the Tribunaldealt with the issue.
3. The respondents herein, are working as Jr.Supervisors in the Office of the Registrar General ofIndia (hereinafter referred to as RGI, for short)Ministry of Home Affairs, Government of India. Therespondents were promoted to the post of Jr. Supervisorson different dates between 1988-1993. Prior to theirpromotion to the post of Jr. Supervisors they wereworking as DEOs in the scale of Rs. 330/- to 560/-. Thepost of Jr. Supervisors carried the pay scale ofRs. 405/- to 700/-. It is stated that the followingorganisations has the sizeable EDP (Electronic DataProcessing) staffs :- (i) National Information Centre,(ii) Department of Statistics, (iii) Registrar Generalof India, (iv) National Crime Record Bureau (Dte. ofCoordination Police Computer), (v) Department of Spaceand (vi) Ministry of defense. The staff existing inthese organisations has been classified into threecategories namely :- (a) Data Entry Operator, (b)Programme Assistant/Console Operator and Programme (c)System analyst and above.
4. The Fourth Pay Commission agreed with asuggestion that there should be a regularly constitutedservice for staff engaged on EDP work, but a separatecadre of EDP officers was found to be feasible. It wasfelt that due to rapid development of computerisationin administration, existing employees should be exposedto this discipline so that their skills get upgradedfor switch over to new technology of work. It wassuggested that as a long term policy it will bedesirable to develop a cadre of experienced employeestrained in EDP and other related areas of work. Inview of these facts, the Pay Commission did not suggestany pay scales etc. and recommended in para 11.45 ofits report as follows :-
"We are of the view that the Departmentof Electronics should examine the matterand suggest reorganisation of theexisting posts and prescribe uniform payscales and designations in consultationwith the Department of Personnel. Untilthen the pay scale and special paysrecommended by us in chapters 8 and 24will apply to these posts".
5. The recommendations of the IVth Pay commissionin Chapters 8 and 24 deal with proposed pay structuresof civilian employees and special pay and Deputation(duty) allowance respectively. In para 8.39 of Chapter8, the Commission recommended that "keeping in view thelevels from which promotions are made to these posts asalso broadly comparable supervisory duties, werecommend that posts in the scale of Rs.425-640,Rs.425-7000 and Rs.455-700 may be given the scale ofRs.1400-40-1800-63. 50-2300. This recommendation of thePay Commission was duly accepted by the Government andthe applicants were given the said pay scale ofRs.1400-2300 w.e.f. 1st January, 1986.
6. In pursuance to the recommendation of the IVthPay Commission contained in para 11.45 of its report, aCommittee popularly known as Sheshagiri Committee wasconstituted by Department of Electronics in 1986itself. The Committee submitted its report which is tothe following effect :-
After careful consideration of the recommendations madeby this Committee, Government of India vide Ministry ofFinance, Department of Expenditure O.M.No. F.7(1)/IC/86(44) dated 11.9.89 introduced followingpay structure for Electronic Data Processing posts whichinter alia comprise pay scale of Data Entry Operators asindicated below :-
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S.No. Designation of Post Pay scale
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1. Data Entry Operator Rs.1150-1500 This will be entry Grade "A" Grade for Higher Sec.
with knowledge of Data entry work.
2. Data Entry Operator Rs.1350-2200 This will be Grade "B" entry Grade for graduates with knowledge of Data Entry work or or promotional grade for Data Entry Operator Grade "A"
3. Data Entry Operator Rs.1400-2300 Promotional Grade Grade "C"
4. Data Entry Operator Rs.1600-2660 Promotional Grade Grade "D"
5. Data Entry Operator Rs.2000-3500 Promotional Grade Grade "E"
All Ministries/Departments were directed tothe review the designation, pay scales and recruitmentqualification of their posts and revise the same as perthe structure indicated by the Government and whereverit was necessary to revise the pay scale of theexisting posts and the concerned Ministry/Departmentwas directed to issue a notification as to the revisedpay scale.
In the office of the RGI the followingelectronic Data Processing posts were available before1.1.86 :
- Data Entry Operator (Group C) in the scaleof pay of Rs.950-1150.
- Data Entry Operator (Group C) in the scaleof pay of Rs.1200-2040.
- Junior Supervisor in the scale of pay ofRs.1400-2300.
- Senior Supervisor in the scale of pay ofRs.1640-2900.
In the Department of Registrar General ofIndia (RGI) the revision was suggested only in thedesignation and pay scale of only Operators Group 'C 'in the scale of Rs.1200-2040, re-designating the postas DEO Group 'B' in the revised scale of pay ofRs.1350-2200 w.e.f. 11.9.89. The applicants areworking as Junior Supervisors in RGI. Even though theJunior Supervisors and the Senior Supervisors continuedto be the promotional posts for the DEOs Group 'B',their designation and pay scale were not revised.
7. The applicants along with others, therefore,filed OA-1831/93, praying for the review/revision oftheir pay scale also as per the aforesaid OM. TheTribunal by its order dated 2.9.94, although primafacie found that the applicants were also dischargingthe functions of EDP in RGI, but, without granting therelief prayed for, directed the petitioner herein toconsider the case of the applicants/respondents hereinregarding equation of the pay in compliance with the orders in OM dated 11.9.89 and if they were foundeligible they should be given the benefits.
8. The matter was considered by the petitionerswhich resulted in passing of the impugned Order dated10th November, 1995. As per this Order the respondentswere not entitled to the benefit of OM dated 11thSeptember, 1989 as they were not performing thefunctions of DEO. The respondents challenged this Orderby filing Original Application No.2249/99 which, asmentioned above, stood allowed by the learned Tribunalvide impugned judgment holding that the respondents aredischarging the same duties and functions as dischargedby DPOs/DEOs and therefore would be entitled to thebenefit of OM dated 11th September, 1989.
9. The Tribunal found that in its earlier Orderdated 2nd September, 1994 passed in Original ApplicationNo.1831/93 it had observed that there were certainanomalies in the grant of extant pay scales to therespondents herein to the post of Junior Supervisors whowere discharging the functions of EDP in RGI. Thus thecategorical finding was recorded by the learned Tribunaleven earlier that the respondents were discharging thesame function of EDP. However, without granting therelief itself, it had directed the petitioners toconsider the case of the respondents and grant them therelief. The Tribunal, in the impugned judgment, wasalso swayed by the Stand of the Department itself takenbefore the Vth Pay Commission when the question ofupgradation of their scales came to be considered by thesaid Pay Commission. It was found that the Departmentitself had, in its Om dated 10th August, 1995 whileforwarding the demand of the respondents for grant ofsuitable pay scales to EDP in RGI has mentioned thatthis demand was examined by the Department and it hadgiven its opinion for further necessary action.
10. Relying upon this OM dated 10th August, 1995the Tribunal has observed in the impugned judgmentthat when the department itself has recommended payscale of Rs.1600-2660/- for the respondents, it was aclassic instance of approbate and reprobate and theprinciple of estoppel would also operate against the petitioners herein. The Tribunal thereafter dealt withthe impugned Order dated 10th November, 1995 issued bythe petitioners herein and held that the same was notfactually correct. The findings of the Tribunal onthis Order dated 10th November, 1995 proceeded asunder :-
"Now come the order dated 10.11.95, theimpugned order. It says that the JuniorSupervisors and the Senior Supervisors donot perform DEO work and the said workwas done by Group 'B' and 'D' Operators.But it does not indicate the nature ofwork that was being performed by theSupervisors other than the DEOs. Infact, we find what was done by therespondents in pursuance of the judgmentof the Tribunal was only to restructurethe existing pay. It is in that we foundany mention having been made as to thenature of work that was being performedby the Supervisors. When a clear findingwas given by the Tribunal uponconsideration of the case and afterhearing the arguments of both the sidesin favor of the applicants andparticularly when they seek to resilefrom their own proposals, it wasincumbent upon the respondents to haveconsidered the duties andresponsibilities of the applicants withreference to the DEOs and also givereasons that what type of functions theyhave been performing to decline thebenefit of the revised pay scale. Theimpugned order is, therefore, whollyarbitrary, laconic and cryptic. Itshould be noted that the department hadnot set up and expert body to evaluate thefunctions and responsibilities.Concerned respondents n the OA were askedto evaluate their functions for the grantof benefit.
In our view the more crucial aspect forconsideration is that the Fifth CentralPay Commission, which is an Expert Bodyhaving considered the duties andresponsibilities of the applicants foundthat they were doing the Data EntryOperator work and though theirnomenclature was Supervisors they shouldbe considered as performing the same workas DEOs and had accordingly granted therevised pay scale but w.e.f. 1.1.96. IT is nobody's case that their functionshave been overnight changed w.e.f.1.1.96. All along they have beenperforming the same work which issupported both on the findings of theTribunal as well as their own proposal.The department cannot now reprobate.Even a lay man can say from the perusalof the duties and responsibilities of theapplicants that their functionsessentially comprise of Data EntryOperating work. The learned counsel Sh.Bhardwaj submits that the proposal by theDepartment only shows that their dutiesare "equal to DDE Operator Grade 'D' asper schedules" and not that they aredoing DEO work. At this stage, it isuseful to refer to para 6 of OM dated11.9.89:
"The pay structure given in para 1 aboveis applicable to EDP posts as such andnot to the cadres of Clerks, TelephoneOperators, Telegraphist, OfficeAssistant, Stenographers, etc. who maybe utilisied partly or wholly for EDPwork. Where there is a doubt if any postfalls in the category of EDP posts,reference may be made direct to NationalInformatics Centre (NIC), Ministry ofPlanning, New Delhi for clarification."
11. Challenging the aforesaid findings of theTribunal, Mr. A.K. Bhardwaj, learned counsel appearingon behalf of the UOI submitted that after Order dated2nd September, 1994 was passed by the Tribunal in OA.No. 1831-32/93. There was indepth examination of thematter by the petitioners and it was found thatrespondents herein - EDP in RGI were not doing the samejob as done by DPOs in other Ministries. It wassubmitted that the comparison of the duties, functionsand jobs of employees was essentially an administrativefunction and the Tribunal could not assume this role.Reliance was placed on para 5 of the OM dated 10thNovember, 1995 to show that the functions beingdischarged by EDPs in RGI are different from DEOs,which makes the following reading :-
"The Junior Supervisors (pay scaleRs.1400-2300) and Senior Supervisors(Rs.1640-2900) of the Office of theRegistrar General, India do not performdata entry operation work. The dataentry work is done by the Data EntryOperators Grade A and Data EntryOperators Grade B. The pay scales ofboth these posts are lower than the nexthigher level of Junior Supervisor, whoare in the scale of Rs.1400-2300. Thehierarchy of EDP posts in the office ofthe RGI vis-a-vis the hierarchy of the paystructure indicated in the Ministry ofFinance, Deptt. of Expenditure O.M.dated 11.9.89 is as under :-
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S.No. Hierarchy In O/o. RGI with pay scales.
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1. Data Entry Operator Grade 'A' (Rs.1150-1500)
2. Data Entry Operator Grade 'B' (Rs.1350-2200)
3. Junior Supervisor (Rs.1400-2300)
4. Senior Supervisor (Rs.1640-2900)
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S.No. Hierarchy of EDP posts in terms of Min. of Finance O.M. dated 11.9.89 with pay scales.
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1. Data Entry Operator Grade 'A' (Rs.1150-1500)
2. Data Entry Operator Grade 'B' (Rs.1350-2200)
3. Data Entry Operator Grade 'C' (Rs.1400-2300)
4. Data Entry Operator Grade 'D' (Rs.1600-2660)
5. Data Entry Operator Grade 'E' (Rs.2000-3500) Thus the existing pay structure of the hierarchy ofposts including Junior Supervisor and SeniorSupervisors in the office of the RGI would be more orless on the same lines of the pay structure indicatedin the Ministry of Finance orders dated 11.9.89. Infact in the case of Senior Supervisor the pay scale ason the higher side as compared to Data Entry Operator,Grade 'D'.
As the incumbents of the posts of Junior Supervisor andSenior Supervisor in the Office of Registrar General ofIndia do not perform the function of data entryoperation work they are not on all fours with the postscovered by the Ministry of Finance, Department ofExpenditure, Office Memorandum dated 11.9.89.Therefore, the posts of Junior Supervisors and SeniorSupervisors would not be covered by the O.M. dated11.9.89 for rationalisation/revision of pay scales. Ithas, therefore, been decided by the Govt. that theexisting pay scale and designation of the post ofJunior Supervisor and Senior Supervisor in the Office ofthe Registrar General of India including posts underits Directorates, do not require any modification.
12. In any case, it was submitted therespondents not having challenged the earlier orderdated 2nd September, 1994 whereby they were not grantedrelief and the matter was left to the decision of theadministration, could not now be given relief by theTribunal w.e.f. 1st January, 1986. It was alsosubmitted that the Tribunal wrongly relief upon therecommendation of the Vth Pay Commission to giverelief to the respondent w.e.f. 1st January, 1986inasmuch as the reason for grant of higher pay scale bythe Vth Pay Commission was not on the ground of "equalpay for equal work" i.e. after comparing the dutiesbut on upgradation of pay scales of the respondentwhich was given to the respondents w.e.f. 1st January,1996 as was clear from para 170.3 of therecommendations. This para is to the followingeffect :-
170.3 The 3rd and the 4th CPCs submittedtheir reports in March, 1973 and June,1986, and their recommendations weregiven effect from 1.3.1973 and 1.1.1986respectively. In our chapter on'Continuing Machinery for Pay Revision'we have recommended revision at payscales of Central Government Employeesonce every 10 years. Since the 4th CPCpay scales came into effect from1.1.1986 our recommendations on revisedpay scales and Dearness Allowance shouldlogically be given effect from 1.1.1986at the 12 monthly AICPI average of 1510.This will prepare the ground for adecennial pay revision for CentralGovernment Employees in the years tocome. Even though this effective date,recommended by us, will also cast aburden of 15 months' arrear payments onthe Central Government's next budget, IT is felt that this reasonable andlegitimate claim of the CentralGovernment employees cannot be wishedaway. Our recommendations on pensionarybenefits shall also be given effect from1.1.1996. However, our recommendationson introduction of new allowances,revision of rates of allowances etc.(including CCA) may be given effect toprospectively, because of the heavyfinancial liabilities involved and alsodue to the fact that many of theincreases in the rates of existingallowances have made a qualitativedifference to the allowances rather thanbeing just a marginal increase. Many ofthe allowances being meant to reimburseexpenditure incurred by the employeesshould not be raised significantly on aretrospective basis, as they wouldthereby become a source of unintendedbenefit to the employees.
13. At the end it was submitted that therespondent had filed forged document before theTribunal Along with O.M. dated 10th August, 1995. Whatwas annexed was a representation of respondentsthemselves but an impression sought to be given bythe respondents was as if the documents were that ofthe Department. Thus, according to the petitioners,the respondent misled the Tribunal and obtained theimpugned Order in their favor.
14. Refuting the aforesaid contentions the learnedcounsel for the respondents submitted that even whiledisposing of the respondent's Original Applicationfiled in the year 1993, the Tribunal gave categoricalfindings in its Order dated 2nd September, 1994 to theeffect that the respondents were discharging the sameduties as that of DEOs. However, instead of passingthe Order of its own, the Tribunal left it to theGovernment to pass appropriate Order. When the petitioners mischievously denied the benefits by reasonof impugned Order dated 10th November, 1995 allegingthat they were not performing the same duties as DEOsin the teeth of Tribunal's observation, the Tribunalhad no option but to quash this Order and grant therelief itself. It was submitted that the Tribunal hadnot done any exercise of comparing the duties but onlyrelied upon the exercise done by the Department earlierwhile forwarding its comments to the Vth Central PayCommission and also the exercise done by the Vth PayCommission and granted the relief on that basis. Itwas further submitted that in fact EDPs in the Officeof the RGI were also treated as part of EDP staff whichwas clear from the relevant recruitment rules. Thelearned counsel also relied upon the O.M. dated 6thJanuary, 1998, 11th November, 1997 and 22nd March, 2000in support of his submission to the effect that therespondents herein were borne on EDP cadre common theall Ministries and therefore were entitled to the samepay scale.
15. The events as unfolded reveal that the IVthPay Commission had observed in para 11.45 of its Reportthat the Department of Electronics should examine thematter and reorganise the existing posts and prescribeuniform pay scales and designation in consultation withthe Department of Personnel and Training. Till thatexercise was done, the pay scales recommended by theIVth Pay Commission were to be given to the incumbantof such posts in the Department. Thus the IVth PayCommission had in its mind that there should be aregular body constituted for the development of thestaff engaged in EDP work. It was because of the rapiddevelopment of computerisation in administration andthe IVth pay Commission had also observed that theexisting employees should be exposed to this disciplinegetting more aptitude for new technology of work. Thishad led to setting up of the Seshagiri Committee and onthe basis of the recommendation of that Committee, O.M.dated 11th September, 1989 was issued rationalising thepay scales of electronic data processing post. Whileother Ministries/Departments of Government of Indiawhere such EDP posts existed were given the benefit ofthis O.M., the grievance of the respondents hereinworking as Jr. Supervisors in the Office of the RGIwas that it had not been extended to them though theywere similarly situated. They filed OriginalApplication No. 1831/93 which culminated into Orderdated 2nd September, 1994. A perusal of the Ordershows that when the said Original Application waspending, counsel for the Department had taken variousadjournments for consideration of the matter at theadministrative level. However, when nothing was donedepartmentally, the Tribunal passed order dated 2ndSeptember, 1994. In this Order the Tribunal took noteof the Act that Vth Central Pay Commission had sincebeen constituted and had started functioning. It alsotook note of the proposition of law to the effect thatprimarily it is the function of the administration todeal with the equation of pay with the post. In thesecircumstances, it disposed of the said petition bydirecting the Government to consider the case of therespondent herein regarding equation of pay incompliance with the Order in accordance with the O.M.dated 11th September, 1989. The operating para of thejudgment reads as under :-
'We are not oblivious of the fact that OMof 1989 referred to above has alreadygiven benefit to number of employeesalleged to be similarly situated as theapplicant and even the recommendation ofthe 5th pay commission, the applicantshall be granted the relief of revisionof scales that will be prospective and inthat event they will be put todisadvantages position and monetaryloss.
We have also gone through the factsplaced before us regarding recruitmentrules, pre-revised pay scales,replacement scales and the scales laiddown in the OM of 1989 referred to above.We find that there is certain anomaliesin the grant of extant pay scale to theapplicant for the post of Junior andSenior Supervisors, who are dischargingthe functions of EDP in RGI. We do notgo into further details and dispose ofthe original application with thefollowing directions:
1) The respondents are directed to considerthe case of the applicants regardingequation of pay in compliance with the order in accordance with OM dated11.9.1989 and if they are found eligiblebecause of entry to the service,similarity of the recruitment rules,duties and responsibilities and functionsdischarged by them is same and has beengiven the benefits by otherMinistries/organisations of Union of Indiawhere the aforesaid OM has been appliedwith certain modifications, may be grantedthe same benefits.
2) The respondents are directed to complythis process expeditiously and it shall bein the fitness of things before therecommendation of the 5th pay commissionare received, forwarded the same also tothe 5th pay commission, if the necessityarises. The applicant may also beconsidered for getting the benefit in thatin other organisations/ministries of theGovernment of India has been given thatbenefit of pay scales.
16. The observations made by the Tribunal in para7 above would show that the Tribunal had gone throughthe recruitment rules, pre-revised pay scales,replacement scales and scales laid down in OM dated11th September, 1989 and found that there were certainanomalies in the grant of extant pay scales to therespondent herein who were discharging the functions ofEDP in the office of RGI. There is no detaileddiscussion or definite findings given on this aspect.Expressing tentative view it left to the Government topass appropriate Orders observing that it was primarilyan administrative function.
17. The petitioner after examining the matterrejected the case of the respondents herein vide OMdated 10th November, 1995 and the reason given is thatthe Jr. Supervisors and Senior Supervisors of theOffice of RGI do not perform same data entry operationwork.
18. The tribunal by reason of the impugnedjudgment has set aside aforesaid O.M. dated 10thNovember, 1995. The Tribunal in the first instance,relied upon its earlier Order dated 2nd September,1994. No doubt in para 7 thereof some observation madeby the Tribunal are to the effect that there werecertain anomalies to the grant of extant pay scales tothe respondent herein in the post of Junior and SeniorSupervisors who were discharging the functions of EDPin the office of the RGI. Fact remains that theTribunal did not go into further details and ratherdirected the petitioner to consider the case of therespondents regarding equation of pay. Therefore theobservation made by the Tribunal were only tentativeand the matter was left to the Government to considerthe case and undertake the exercise of equation ofposts and pay. The Tribunal thus could not have reliedupon these observations for coming to the conclusionthat the respondents herein were discharging thefunctions of EDP in the office of RGI.
19. In so far as reliance upon the proposal placedbefore the Vth Pay Commission by the Department isconcerned, the Tribunal has committed an obviousfactual error. The OM dated 10th August, 1995 sent bythe Department to the Vth Pay Commission includescomments furnished by the Association of therespondents. The Tribunal while reproducing this OMhas also reproduced para 31.07 i.e. relating toproposal of pay scales and note appended thereto.
It is on the basis of this note that theTribunal came to the conclusion that once theDepartment itself has contended that the respondentwere entitled to equal pay, they could not now resilefrom their stand and applied the doctrine of estoppel.However, the aforesaid para 31.07 was not the part ofOM dated 10th August, 1995. In fact along with theaforesaid OM, comments of the union/Association werealso forwarded and this para 31.07 is the reproductionof these comments. Therefore, what is stated in theproposal or note was the case of the respondent and notof the Department.
20. Here it would be relevant to point out thateven the recommendations made by the authorities,although that is not the case here, by itself may notbe a sufficient ground to grant all the relief. Thiswas so held by the Supreme Court in the case in Union of India and others versus Pradeep Kumar Dey reportedin JT 2000 (Suppl.2) SC 445) and particularly thefollowing observations there from :-
8. "... In the absence of materialrelating to other comparable employees asto the qualifications, method ofrecruitment, degree of skill, experienceinvolved in performance of job, trainingrequired, responsibilities undertaken andother facilities in addition to payscales, the learned Single Judge wasright when he stated in the order thatin absence of such material it was notpossible to grant relief to therespondent ...
21. The third ground given by the Tribunal is therecommendation of the Vth Central Pay Commission. TheTribunal has observed that the Pay Commission which isan expert body having considered the duties andresponsibilities of the respondents herein and foundthat they were doing the data entry operator work andthough their nomenclature were supervisors they shouldbe considered as performing the same work as DEOs andhad accordingly granted the revised pay scales w.e.f.1st January, 1996.
22. It was the submission of learned counsel forthe petitioner that the Vth Pay Commission neverrecommended the higher pay scales after comparing theduties. Instead, the Vth Pay Commission recommended theupgradation of pay scale of Rs.1600/- - Rs.2660/-(revised scale of Rs.4500/- - Rs.7000/-) to therespondent herein only for the reason that incumbentsin the feeder post of data entry operator grade B(Rs.1350/- - Rs.2200/-) on promotion, in the hierarchy,to the grade of Junior Supervisors (Rs.1400/- -Rs.2300/-) are granted higher pay scale on account ofmerger of pay scales of Rs.1350/- - Rs.2200/- andRs.1400/- - Rs.2300/-). Therefore, according to thelearned counsel for the petitioner it was the result ofupgradation of pay scales that the respondents hereinwere granted the higher pay scales w.e.f. 1st January,1996 on the recommendation of the Vth Pay Commissionand not on parity of their duties with the DPOs. Itwas pointed out that the Commission had recommended asimilar scale of Rs.1640/- - Rs.2900/- for DataProcessing Assistant (Grade-A) and Senior Supervisors.It was also pointed out that the Pay Commission hadrecommended retention of the designation of JuniorSupervisors and Senior Supervisors and there was norecommendation to change the designation of DEOGrade-D, Grade E, etc.
23. We have gone through the recommendation of theVth Pay Commission. We find there from that the maindemand of the All India Census Employees Federationrelating to the Office of the RGI was the upgradationof the posts in various divisions/cells. This isclearly spelt out in para 70.7 of the report.Thereafter the recommendations contained upgradation ofcertain posts and revised pay scales as per the saidupgradation. Admittedly while doing so the Vth PayCommission did not compare the duties of the DEO's withtheir counter-parts in other organisations. Therefore,we agree with the submission of learned counsel forthe petitioner that the Tribunal was not correct incoming to the conclusion that the Vth Pay Commission asas Expert Body had considered the duties andresponsibilities of the respondents herein and foundthat they were doing some work as DEOs and on thisground that Vth Pay Commission had granted the revisedpay scales w.e.f. 1st January, 1996.
24. Thus the entire premises of the Tribunal'sOrder is founded or wrong assumption of facts. Therecannot be any doubt that had this exercise been done bythe Vth Pay Commission and had the Vth Pay Commissionfound the duties of the respondents herein being thesame as that the DEOs the position would have beendifferent. That is not the factual position. Itcannot be said that there is any study undertaken byany Expert Committee comparing the job profiles of theofficials working in the two organisations. In theabsence thereof it is not permissible for the Court toapply the principle of "Equal Pay for Equal Work".Reference in this connection may be made to the recentjudgment of the Supreme Court in the case of Union of India and Ors. v. Pradeep Kumar Dey (supra) andparticularly the following observations there from:-
8. "... No doubt, the Directorate ofCRPF made recommendations to the PayCommission for giving higher pay scaleson the basis of which claim is made bythe respondent for grant of pay scale.The factual statements contained in therecommendation of a particular departmentalone cannot be considered per se proofof such things or they cannot bythemselves vouch for the correctness ofthe same. The said recommendation couldnot be taken as a recommendation made bythe Government. Even otherwise mererecommendation did not confer any righton the respondent to make such a claimfor writ of mandamus."
25. On the contrary, in the present case when therespondent herein had filed Original ApplicationNo. 1831/93 on an earlier occasion, while disposing ofthe same vide Order dated 2nd September, 1994 theTribunal had directed the Government to consider thecase. After consideration of the case, the Governmentby the impugned OM dated 10th September, 1995 refusedthe relief to the respondent herein by giving thereason that Jr. Supervisors and Senior Supervisors ofthe Office of the RGI do not perform data entryoperation work.
26. At this stage it may be relevant to point outthat same relief was claimed by similar officials towhich category the respondents belong i.e. Junior andSenior Supervisors in the Office of the RGI itself, byfiling Original Application No. 569-70/93 before theCuttack Bench of the Central Administrative Tribunal.The Government had opposed the aforesaid OriginalApplications by raising the same contention namely, theJr. Supervisors and Senior Supervisors were not doingthe same duties as were being performed by DEOs inother organisations. The Tribunal had rejected theOriginal Applications by accepting the aforesaid standof the Government. The Tribunal observed as follows inits Order dated 26th April, 1999 passed in OriginalApplication No. 570/93:-
"We have in an Order delivered today inOA No. 569 of 1999 (Sarat Chandra Rout and Ors.. v. Union of India and Ors.),held that Junior Supervisors have noclaim for getting their post redesignatedas Data Entry Operator Grade-D. In the order of the Ministry of Finance, DataEntry Operator Grade-E is a promotionalgrade from Data Entry Operator Grade-D.As such, Senior Supervisors, if they haveto be fitted in as Data Entry Operator,would be fitted in only as Data EntryOperator Grade-D. But the existing scaleof Senior Supervisor is higher than theData Entry Operator Grade-D which hasalso been noted by the Registrar Generalin his order dated 10.11.1995. In thisorder, Senior Supervisors have beencompared with both Data Entry OperatorGrade-D and Data Entry Operator Grade-E,the latter carrying scale ofRs. 2000-3500/-. It is this scale whichthe applicants have asked for. TheRegistrar General has mentioned in thisorder that Senior Supervisors in theoffice of Registrar General do notperform data entry operation work. Theapplicants have in Annexure-12 enclosedan order dated 24.5.1993 in whichDirector of Census Operations,Bhubaneswar, has instructed the JuniorSupervisors to work in terminals and dodata entry work. From this it does notappear that this is a permanentarrangement and the job requirement ofJunior Supervisors has been changed toinclude data entry operation work. Inany case, the Registrar General in hisorder dated 10.11.1995 two years laterhas noted that Junior Supervisors do notperform any data entry operation work.We have no reason to disbelieve the same.So far as the present applicants beforeus are concerned, they are SeniorSupervisors and they have shown nodocument that they do data entryoperation work. As they do not performdata entry operation work, they can haveno claim to be designated as Data EntryOperator Grade-E. As we have alreadynoted the scale of pay of SeniorSupervisor is higher than the Data EntryOperator Grade-D. It is also to benoted that the classification of DataEntry Operators in different grades fromGrade-A to Grade-E is not to bemechanically followed in each Departmentand depending upon requirement andsituation in the Department, the existingElectronic Data Processing staff have tobe redesignated and given correspondingpay scales. Registrar General in hisorder dated 10.11.1995 has examined thematter and taken the view thatdesignation and pay scale of SeniorSupervisors do not require any change.There is no material before us to holdthat the decision of the RegistrarGeneral is incorrect or is based onconsiderations which are not relevant.In paragraph 5 of this order theRegistrar General has mentioned thatSenior Supervisors do not perform dataentry operation work. The letter dated24th May, 1993 enclosed by the applicantalso does not relate to SeniorSupervisors. Even for Junior Supervisorsit is not clear that this order askingthem to work in terminats and to do dataentry work is a permanent arrangement andaccordingly their job requirement or dutycharts have been changed. In view ofthis, we hold that the applicants havenot been able to make out a case to getthe scale of Rs. 2000 - 3500/- as DataEntry Operator Grade-E according to therecommendations of the SeshagiriCommittee and in accordance with FinanceMinistry's O.M. dated 11.9.1989.
27. In view of the foregoing discussions, we areof the opinion that the judgment of the Tribunalcannot be allowed to stand which is accordingly setaside. This Writ Petition stands allowed.
There shall be no order as to costs.