Central Administrative Tribunal - Ernakulam
C. Suresh Kumar vs Union Of India on 28 June, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/00433/2014
Wednesday, this the 28th day of June, 2017
CORAM:
Hon'ble Mr. U. Sarathchandran, Judicial Member
Hon'ble Ms. P. Gopinath, Administrative Member
1. C. Suresh Kumar, aged 46 years, S/o. Late Sri Chandran,
Laboratory Demonstrator, ECE Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 238,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
2. Tom Jose, aged 26 years, S/o. Jose Thomas, Laboratory
Demonstrator, Mechanical Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 706,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
3. A.U. Rakesh, aged 25 years, S/o. Late Sri Unnikrishnan,
Laboratory Demonstrator, ECE Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 707,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
4. C.K. Shyam Kumar, aged 27 years, S/o. P. Chandrashekharan Pillai,
Laboratory Demonstrator, ECE Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 637,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
5. Nideesh S.S, aged 29 years, S/o. Satheesh Babu,
Laboratory Demonstrator, ECE Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 402,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
6. S. Renjith, aged 27 years, S/o. Late Sri Sreekumar,
Laboratory Demonstrator, ECE Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 633,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
7. M. Antony John Britto, 30 years, S/o. A. Michael,
Laboratory Demonstrator, ECE Faculty, Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 735,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
8. Jerin George, aged 24 years, S/o. Late Sri George A.P.,
Laboratory Demonstrator, Mechanical Faculty,
Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 418,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
9. Vipin Vijayan, aged 26 years, S/o. Vijayan V.P.,
Laboratory Demonstrator, Mechanical Faculty,
Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 625,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
10. Anoop P.G., aged 29 years, S/o. P.V. Gopalan,
Laboratory Demonstrator, Mechanical Faculty,
Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 576,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
11. Sudish Kumar, aged 31 years, S/o. Ramankuty Nair,
Laboratory Demonstrator, Mechanical Faculty,
Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 255,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
12. V. Rathish, aged 30 years, S/o. Lakshmanan K.,
Laboratory Demonstrator, Mechanical Faculty,
Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 536,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310.
13. D. Sivakrishna, aged 26 years, S/o. D. Venugopal,
Laboratory Demonstrator, Mechanical Faculty,
Indian Naval Academy,
Naval Academy Post, Ezhimala 670 310, residing at Qtr. No. 501,
CERA, Indian Naval Academy, Naval Academy Post, Ezhimala
670310. ... Applicants
(By Advocate : Mr. M.R. Hariraj)
Versus
1. Union of India, represented by the Secretary to Government of India,
Ministry of Defence, New Delhi - 110 011.
2. Director, Directorate of Civilian Personnel, Integrated Head Quarters,
Ministry of Defence, New Delhi - 110 011.
3. Commandant, Indian Naval Academy, Naval Academy Post,
Ezhimala 670 310. ... Respondents
(By Advocate: Mr. N. Anilkumar, Sr. PCGC (R)]
This application having been heard on 20.06.2017, the Tribunal on
28.06.2017 delivered the following:
ORDER
Hon'ble Mr. U. Sarathchandran, Judicial Member -
Applicants are Lab Demonstrators in the Indian Naval Academy. They are aggrieved by the refusal of the respondents to grant pay equal to the pay scale granted to Lab Demonstrators and comparable posts in the other establishments under the Ministry of Defence based on their educational qualifications. According to them the Vth Central Pay Commission (CPC) recommended that posts having minimum qualifications in diploma in engineering shall be placed in the pay scale of Rs. 5,000-8,000/-. Though the recommendation was accepted it was not uniformly implemented. In many cases concerning the posts of Laboratory Demonstrators in the Ministry of Defence like National Defence Academy, Indian Military Academy only the pay scale of Rs. 4,000-6,000/- was granted but in the case of the applicants the pay scale granted was Rs. 4,500-7,000/-. The VIth CPC had also considered this issue and reiterated the recommendations of the Vth CPC. In paragraph 3.4.7 the VIth CPC stated:
'Fifth CPC had recommended that all posts carrying minimum qualifications of diploma in engineering should be placed in the pay scale of Rs. 5000-8000. While this recommendation was accepted, however, its implementation was interpreted differently in different departments and organisations. The scale of Rs. 5000- 8000/- will now get merged with the scales of 5500-9000 and Rs. 6500-10500 on account of restructuring of pay scales being recommended by this commission. To ensure that the recommendation made by the Fifth CPC and accepted by the Government is uniformly implemented in the revised structure of pay bands, the commission recommends that all posts in Subordinate Engineering Cadres carrying minimum qualification of diploma in engineering for direct recruits and having an element of direct recruitment should be placed in the running pay band PB2 of Rs. 8700-34800 along with a grade pay of Rs. 4200 corresponding to pre- revised pay scale of 6500-10500'.
The applicants state that they are all appointed on direct recruitment and are having qualifications of diploma in engineering. According to them respondent No. 1 had granted higher pay scale of Rs. 9300-34800/- plus Grade Pay of Rs. 4,200/- to the Laboratory Demonstrators in the National Defence Academy and Indian Military Academy. Though the unions of the applicants took up the matter vide Annexure A3 representation, the request was rejected by the respondents vide Annexure A1. According to the applicants higher pay scale is already granted as indicated in Annexure A6 information obtained under Right to Information Act to the comparable posts where the qualification prescribed is diploma in engineering. Therefore, the applicants seek relief as under:
'i. To quash Annexure A1;
ii. To declare that the applicants are entitled to be granted the pay scale of Rs. 9300-34800/- (plus Grade Pay of Rs. 4200/-) with effect from their date of appointment with all consequential benefits and to direct the respondents to refix the pay and allowances of the applicants in 9300-34800 (plus Grade pay of Rs. 4200) with all consequential benefits and to draw and disburse the arrears of pay and allowances with interest @ 12% per annum;
iii. grant such other reliefs as may be prayed for the court may deem fit to grant; and iv. grant the costs of this Original Application.'
2. Respondents resisted the OA mainly on the ground that since the applicants have approached the Tribunal after a lapse of 1B= years, the OA is liable to be dismissed. It is further stated that as per the Recruitment Rules the pay scale of the Lab Demonstrators in Navy directly recruited is Rs. 5,200-20,200/- with Grade Pay of Rs. 2,800/-. According to them the pay scale of Rs. 9,300-34,800/- with Grade Pay of Rs. 4,200/- in PB-2 is the pay scale of Scientific Assistant under the same Recruitment Rules and therefore, the claim of the applicants to grant pay in the promotional post of Scientific Assistant cannot be justified as the scale of Rs. 9,300-34,800/- with Grade Pay of Rs. 4,200/- in PB-2 is the hierarchical scale in the scientific cadre. According to the respondents the post of Scientific Assistant is a Group-B post and whereas the post of Lab Demonstrator is a Group-C post, as per the subsequent recommendation regarding Laboratory Demonstrators of Indian Navy by the VIth CPC, a copy of which is produced as Annexure R2. The Laboratory Demonstrators of the Indian Navy in the pre-revised scale of Rs. 1,320-2,400/- (revised Rs. 4000-6000/-) were given the upgraded pay scale of Rs. 1,400-2,300/- (revised Rs. 4,500- 7,000/-) due to their higher qualifications. Hence, the demand of the applicants for pay scale equivalent to that of Scientific Assistants is inappropriate and cannot be justified. Respondents further state that the qualification needed for appointment to the post of Lab Demonstrator is not confined to diploma in engineering but it comprises of various streams of general science as well. According to the respondents the applicants have applied for the post knowing very well the pay and allowances they would be entitled on their appointment. According to the respondents Lab Demonstrators in the National Defence Academy are placed in the pay scale of Rs. 5,500-175-9,000/- on notional basis as applicable under UGC being an isolated cadre of National Defence Academy and Indian Military Academy. The VIth CPC did not make any specific recommendation for the Indian Navy and accordingly the Lab Demonstrators of Indian Navy has been given revised pay scale of PB-1 of Rs. 5,200-20,200/- with Grade Pay of Rs. 2,800/-. Respondents pray for rejecting the OA.
3. In the rejoinder applicants contend that the OA has been filed within the time limit prescribed in the Administrative Tribunals Act, 1985. The applicants reiterate the contention that similarly situated Laboratory Demonstrators in the National Defence Academy and Indian Military Academy are given a higher pay scale with Grade Pay of Rs. 4,200/- and that they alone have been discriminated. It is also contended that isolation of the post is not a justification for higher pay scale in comparison with others of the similar nature.
4. We have heard Shri M.R. Hariraj, learned counsel for the applicants and learned Central Government Standing counsel appearing for the respondents. Perused the record.
5. Annexure A1 is the communication not accepting the proposal for grant of Grade Pay of Rs. 4,200/- to the Laboratory Demonstrators of Indian Navy on the basis of their required qualification. The reasons stated in Annexure A1 for not accepting the proposal read :
'(a) The 5th CPC had made a general recommendation regarding grant of upgraded pay scale of Rs. 5000-8000 (pre-revised Rs. 1600-2660) to Diploma Engineers who at that time were in the pre-revised pay scale of Rs. 1400-2300. This recommendation of the 5th CPC was subject to availability of existing pay scales. At that time, 5th CPC had also recommended specific pay structure for different engineering cadres.
(b) The specific recommendation regarding Lab Demonstrators of Indian Navy was made by the 5th CPC vide Para 63.87 of its report (Enclosure-II). On the basis of specific recommendation made in this Para, Laboratory Demonstrators of Indian Navy in the pre-revised pay scale of Rs. 1320-2040 (revised Rs. 4000-6000) were given the upgraded pay scale of Rs. 1400-2300 (revised Rs. 4500-7000).
(c) The Recruitment Rules for the post of Laboratory Assistant and Laboratory Demonstrator are promulgated vide SRO 235/2000 (Enclosure-III).
This specifies the entry level qualification for the post of Lab Demonstrators in Navy is as follows:
'A Degree in Science with Physics and Chemistry or Diploma in Electrical/Mechanical Engineering from a recognized University/Institution;
Or A certificate of apprenticeship in Mechanical/Electrical Engineering for a period of three years and with two years experience.'
(d) From the above, it is clear that 'Diploma in Engineering' is not an essential qualification for the post of Laboratory Demonstrators. Further method of recruitment for the post is 'By absorption failing which by direct recruitment'.
(e) The 5th CPC has made no specific recommendation on this issue.
Accordingly, Laboratory Assistant/Demonstrator of Indian Navy have been the granted replacement revised pay scale of PB-1 with GP of Rs. 2800/-.
(f) The Lab Assistant/Demonstrators of Indian Navy were the upgraded pay scale strictly as per the specific recommendation of the 5 th CPC and as such general recommendation was not applicable in their cases. Therefore, the demand of Staff Side cannot be considered as an anomaly. b� Bringing the raison de etre of paragraph (d) in the aforequoted portion of Annexure A1 communication to a sharp focus, learned counsel for the applicants submitted that as per Annexure A2 Recruitment Rules, the educational qualifications required for direct recruitment in the cadre of Lab Demonstrators are:
'A Degree in Science with Physics and Chemistry or Diploma in Electrical/Mechanical Engineering from a recognized University/Institution.
Or A Certificate of apprenticeship in Electrical/Mechanical Engineering for a period of three years and with two years experience.' Shri Hariraj, learned counsel for the applicants submitted that applicants are holders of diploma in electrical/mechanical engineering and therefore, the recommendations of the VIth CPC in paragraph 3.4.7 extracted above will squarely apply to them. According to him the contentions of the respondents in Annexure A1 at paragraph (d) that diploma in engineering is not an essential qualification for the post of Lab Demonstrators is absolutely wrong because Annexure A2 Recruitment Rules do prescribe the educational qualification of diploma in mechanical engineering as the required qualification for the post of Lab Demonstrators in Navy from Group-C to Group-B post. True, diploma in Electrical/Mechanical Engineering is an alternative qualification along with other qualifications of degree in science with physics or chemistry. Another alternative qualification is certificate of apprenticeship in electrical/mechanical engineering for a period of three years and with two years experience. Therefore, there is some force in the arguments of Shri Hariraj that diploma in engineering is a qualification as against the contentions of the respondents in Annexure A1 that diploma in engineering is not an 'essential' qualification for the post and that the method of recruitment for the post is by absorption/failing which by direct recruitment. It has to be noted that even if the post is filled up by absorption, going by Annexure A2 Recruitment Rules the candidate should have the required educational qualification ie. diploma in engineering or degree in physics or chemistry or apprenticeship in electrical/ mechanical engineering with the required length and experience.
6. The controversy in this case is non-granting of pay scale of Rs. 9,300- 34,800/- plus Grade Pay of Rs. 4,200/- to the applicants who possess the diploma in engineering as in the case of the pay scale of other similarly situated Laboratory Demonstrators in other defence establishments. One of the similarly situated post which carries a pay scale of Rs. 9,300-34,800/- in PB-II with Grade Pay of Rs. 4,200/- is Chargeman Grade-II (Mechanical) in Naval Armament Inspection Organization under the Indian Navy. Annexure A7 is a copy of the advertisement for filling up the vacancies in the Naval Armament Inspection Organization wherein for Chargeman-II (Mechanical) the educational qualifications prescribed are Bachelor of Science degree with Physics or Chemistry or Mathematics from a recognized University or Institution or diploma in electrical or mechanical or electronics or Production engineering from a recognized University or Board. According to the respondents Naval Armament Inspection Orgnaization is not an establishment to which Annexure A2 Recruitment Rules are applicable and therefore the pay scale of Chargeman-II in that establishment cannot be taken as a comparison for claiming equal pay for equal work cases by the applicants in this case.
7. Learned Central Government counsel pointed out that the pay scale of Rs. 9,300-34,800/- plus Grade Pay Rs. 4,200/- is the pay scale of Scientific Assistant which is a post in hierarchy superior to the post held by the applicants. It was argued that the post of Scientific Assistant is the promotional post for the applicants and therefore, administratively it is not appropriate to grant the same pay scale of Scientific Assistant in Grade B to the applicants who hold lower post in Group-C. We find some force in this contention because such a situation will give rise to hierarchial and departmental problems. Thus, we find some force in the contentions of the respondents that the respondent authorities have taken a conscious decision to grant the Laboratory Demonstrators a scale lesser than the Scientific Assistants.
8. Learned Central government counsel brought to our notice a recent judgment of the apex court in Union of India v. T.V.L.N. Mallikarjuna Rao - (2015) 3 SCC 653 wherein it was held that the difference in the pay scales based on educational qualifications, nature of job, responsibilities, accountability, experience and manner of recruitment does not violate Article 14 of the Constitution. It was held by the apex court :
'26. The classification of posts and determination of pay structure comes within the exclusive domain of the executive and the Tribunal cannot sit in appeal over the wisdom of the executive in prescribing certain pay structure and grade in a particular service. There may be more grades than one in a particular service.' In the above case the apex court relied on Shyam Babu Verma v. Union of India (1994) 2 SCC 521 where the apex court held :
'9...............The nature of work may be more or less the same but scale of pay may vary based on academic qualification or experience which justifies classification. The principle of 'equal pay for equal work' should not be applied in a mechanical or casual manner. Classification made by a body of experts after full study and analysis of the work should not be disturbed except for strong reasons which indicate the classification made to be unreasonable. Inequality of the men in different groups excludes applicability of the principle of 'equal pay for equal work' to them. The principle of 'equal pay for equal work' has been examined in State of M.P. v. Pramod Bhartiya1 by this Court. Before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. Then only it can be held that there has been a discrimination, within the meaning of Article 14 of the Constitution.' (underlining supplied) The court also relied on Mewa Ram Kanojia v. All India Institute of Medical Sciences (1989) 2 SCC 235. In that case the apex court held:
'5. While considering the question of application of principle of 'Equal pay for equal work' it has to be borne in mind that it is open to the State to classify employees on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scale but if the classification does not stand the test of reasonable nexus and the classification is founded on unreal, and unreasonable basis it would be violative of Articles 14 and 16 of the Constitution. Equality must be among the equals. Unequal cannot claim equality. '
9. Applicants have neither established that the incumbents in the other comparable posts in the Defence department are performing equal nature of work nor that there was no reasonable basis to treat them separately in matters of pay scale in a discriminative manner. In the light of the above discussion of law, we are of the view that a conscious decision was made by the respondents based on the different facts and circumstances involved in the nature of work and duties and responsibilities of the posts held by the applicants that the Laboratory Demonstrators were granted a pay scale of Rs. 5,200-20,200/- plus Grade Pay of Rs. 2,800/-.
10. Accordingly, the Original Application is dismissed. Parties shall suffer their own costs.
(MS. P. GOPINATH) (U. SARATHCHANDRAN) ADMINISTRATIVE MEMBER JUDICIAL MEMBER ''SA''