Central Administrative Tribunal - Delhi
Shri Ajeet Singh vs Union Of India & Ors. Through on 9 February, 2010
Central Administrative Tribunal
Principal Bench
OA No. 727/2009
MA No. 484/2009
MA No.2335/2009
New Delhi, this the 9th day of February, 2010
Honble Mrs. Meera Chhibber, Member (J)
Honble Dr. Ramesh Chandra Panda, Member (A)
1. Shri Ajeet Singh
House No.71/4,
Sector-1, Pushp Vihar,
Saket, New Delhi.
Shri Atma Ram,
Dy. Secretary (General)
Topographical Staff Association,
112/2, Sector-1, Pushp Vihar,
New Delhi-17.
Applicants.
(By Advocate : Shri M.K. Bhardwaj)
Versus
Union of India & Ors. through :
Secretary,
Ministry of Science & Technology,
Department of Science & Technology,
Technology Bhawan, New Mehrauli Marg,
New Delhi.
Surveyor General of India,
Survey of India,
Dehradun , Uttaranchal.
Directorate of Survey (AIR),
Survey of India,
West Block No.4,
R.K. Puram, New Delhi.
Secretary,
Department of Expenditure,
Ministry of Finance,
North Block, New Delhi.
. Respondents.
(By Advocate : Shri Duli Chand)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) :
Both the Applicants are working as Survey Assistants, Division-I Grade-I in the Directorate of Survey under the control of Surveyor General of India in the Ministry of Science and Technology, Govt. of India. The main controversy involved in the OA is regarding non grant of pay scale to the Applicants on par with Surveyors, whereas they are discharging the same duties and responsibilities as Surveyors who are in a higher pay scale. There are two groups in the Directorate of Survey discharging the same responsibilities and duties. They are (a) Survey Assistants and (b) Surveyors. Survey Assistants are getting scale of pay of Rs.5000-8000 and Surveyors pay scale in the 5th Central Pay Commission (CPC) is Rs.5500-9000. The grievance of the Applicants was that they should have been granted pay scale of Rs.5500-9000, which had been denied by the Respondents. That being the grievance of the Survey Assistants, some of them approached this Tribunal in three different Benches in OA No. 131/2008 at Guwahati Bench, OA No. 746/2007, OA No.237/2007, OA No.2031/2007 and OA No.1541/2008 in the Principal Bench and OA No.946/2007 in Kolkata Bench. While disposing of the aforementioned OAs , this Tribunal took note of the relevant contentions including the facts and recommendations of the Anomaly Committee. In OA No.2031/2007, the Tribunal specifically observed that there was no difference between the duties and responsibilities of Survey Assistants and Surveyors and the OA was partly allowed vide order dated 15.07.2008 (Annexure-A/5) and remitted back the matter for consideration for grant of pay scales of Rs.5500-9000/- to the Applicant w.e.f. 01.01.1996 and for removal of anomaly between the Survey Assistants and Surveyors. However, the Respondents considered the judgments of this Tribunal passed in various OAs and in the Office Memorandum No.SM/04/017/2008 dated 31.12.2008 (Annexure-A/1) made a detailed analysis of the issue and decided that there was no functional justification in the matter of upgradation of the posts in question and the demand of the employees stands rejected in light of the factors brought out above. Aggrieved by the said order of the Respondents, the Applicants are before this Tribunal with the following relief :-
i) to quash and set-aside the impugned order dated 31/12/2008 (Annexure A-I) and direct the respondents to grant higher pay scale of Rs.5500-9000 as Survey Assistant Grade-I Division I to the applicants from 01.01.1996 with all arrears of pay.
to direct the respondents to remove the anomaly by revising the pay scale of applicants from 01.01.1996 with arrears and 18% interest.
To allow the OA with exemplary cost.
To pass such other and further orders which theilr lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case.
2. Shri M.K. Bhardwaj, learned counsel for the Applicants very comprehensively narrated the background of the case and put forward his contentions. He also filed his written submissions in the case on 5.2.2010. He anchored his contentions on the following grounds :- (i) There is no difference between the functions, duties and responsibilities of Survey Assistant and Surveyor. This fact has been admitted by the Respondents in Para 4.23 of the counter reply in the OA. He, in support of this contention, relied on the judgment of Apex Court in the case of UOI Versus Dineshan K. K. [2008 (1) SCC (L&S) 248]. (ii) There is no difference in the eligibility criteria for promotion of Surveyors and Survey Assistants to the next higher post and both get promoted to the next higher post. (iii) There is no difference even in the qualification between the posts of Surveyor and Survey Assistant Division-I Grade-I. Further, the Draftsman Division-I Grade-I get the scale of pay at par with the Surveyors but the Survey Assistants get a lesser pay. (iv) The Anomaly Committee constituted for the purpose recommended the merger of two posts, namely, Survey Assistants and Surveyors in the same scale of pay of Rs.5500-9000/- and to have one category only. (v) It was submitted that the Recruitment Rules and selection process for Survey Assistant and Draftsman being common, the respondents could not discriminate the Survey Assistants in the pay scales. (vi) The qualification cannot be the basis to deny the pay scale if employees in differently designated posts discharge same duties and Shri Bhardwaj relied on the judgment of Honble Supreme Court in Ajay Jadav Vs. NTR University [JT 1999 (6) SC 596]. (vii) It is stated by the Applicants that this Tribunal has passed direction in OA No.666/2009 decided on 26.10.2009 to grant pay scale of Rs.5000-8000 to the category of posts which are feeder category for the Survey Assistants and, therefore, Shri Bhardwaj pleaded that the non grant of pay scale of Rs.5500-9000 to the Applicants would create further anomalies. (viii) He contended that the Applicants, namely, Survey Assistants and Surveyors are in the same Department and discharging the same functions, duties and responsibilities and as such all things being equal, the persons holding identical posts were not to be treated differently in the matters of their pay scales merely because they belong to different Department. But in this case both Survey Assistants and Surveyors are belonging to the same Department and as such the case of the Applicants is fully covered by the dicta of the Honble Supreme Court in the case of Randhir Singh Vs. UOI [AIR 1982 (SC) 879] and BSNL & Others Vs. Abhishek Sukla and another [2009(2) SCC (L&S) 54. (ix) Another contention raised by Shri Bhardwaj is that though the discretion is vested with the Administrative Authority, it is neither unfettered nor absolute, as held by the Honble Supreme Court in the Union of India Vs. Kuldeep Singh [2004(2) SCC 590]. It is to be exercised in consonance with the right of a govt. employee. In the present case, Respondents have failed to give any justified reason to deny the Applicants pay scale of Rs.5500-9000. (x) He also contended that the Survey Assistants and Surveyors occupy the same seniority list and are covered by the same recruitment rules . The only difference between the two is Surveyors are directly recruited whereas Survey Assistants are promoted. His contention is that such difference cannot create pay differentials between the two categories. (xi) One more contention relates to the pay parity that exists between the two groups in the 6th CPC but only for the 5th CPC that pay differential continued. Therefore, it was contended that the Applicants case was fully covered by the decision of this Tribunal in the case of S.R. Dheer Vs. UOI in OA No.164/2009, which held that the historical parity should not be ignored and differential should not be allowed to continue. It is submitted that the Respondents have created classification which has subjected the Applicants to grave injustice and have effected the legitimate pay scale of Rs.5500-9000. He also submitted that the pay parity has been allowed by this Tribunal in OA No. 2369/2008 for which the orders have been passed on 11.05.2009 wherein the reliance has been laid on the judgment of Honble High Court of Delhi in the case of Union of India Vs. Mohinder Singh [2008(1) SLJ SC 131] and Nehru Yuva Kendra Sangathan Vs. Rajesh Mohan Sukla and others [JT 2007 (9) SC 292]. Shri Bhardwaj argued that the Applicants prayers should be allowed and correct pay scale must be granted.
3. Per contra, the learned Counsel for the Respondens, Shri Duli Chand strongly opposed the contentions put forward by Shri Bhardwaj. It is contended by Shri Duli Chand that the order dated 31.12.2008 has been issued by careful consideration of many parameters viz. mode of recruitment, qualification and hierarchical structure of Surveyors and Survey Assistants. He drew our attention to the Table in the said order to submit that parity between these two posts was not established. It is contended that though both posts have a common seniority for promotion to the higher post (Officer Surveyor), hierarchy of both posts is not same as the Surveyors are directly recruited and Survey Assistants are promoted from Div.II posts. He hastened to add that the common seniority list is prepared by the Department only for the purpose of promotion to the post of Office Surveyor. Shri Duli Chand stated that though 5th CPC recommended for the merger of both posts, the same was not accepted by the Government. He was very emphatic to state that 5th CPC did not recommend pay scale of Rs.5500-9000 to Survey Assistants. Referring to the recommendation of the Anomaly Committee, he submitted that on examination the Government did not agree to the recommendations on merger and pay parity. Shri Duli Chand submitted that Draftsman Cadre and Survey Assistant Cadre had been different and were not functionally comparable and, therefore, he refuted the Applicants averment to compare them with the Draftsman and to grant them pay scales of Draftsman when the Draftsman were granted pay scale of Surveyor.
4. A contention was raised by the counsel for Applicant that the pay scales of Surveyors and Survey Assistants have been indicated to be same in the 4th and 6th CPC. Confronted with the question to find out what was the position in 4th CPC and what is in the 6th CPC, neither the Counsel for the Applicant nor the Counsel for Respondents could furnish any specific document to that effect. Be that as it may, the posts of Surveyor and Survey Assistants might get the pay scale in different periods, as might have been recommended by the Pay Commission, but each Pay Commission develops its criteria and parameters for recommending pay scales for different categories. The Survey Assistants and Surveyors were getting the pay scale of Rs.1400-2600 in the 4th CPC. While implementing the 5th CPC, it is noted that both Surveyors and Survey Assistants were brought under the pay scale of Rs.5000-8000 but 30% of the Surveyors were granted higher pay scale of Rs.5500-9000. Again the Government vide DST OM dated 27.7.2007 extended the scale of pay Rs.5500-9000 uniformly to all the Surveyors. It is a fact that 5th CPC recommended merger of two posts (Survey Assistants and Surveyors) but the Government, in its wisdom and logic did not accept the merger. Hence, since the issue involved is relating to the 5th CPC, our analysis of this issue should not stray away to other Pay Commissions but to be confined to the 5th CPC, which in our considered opinion, would be the right approach.
5. In this backdrop, we would now go into the details of the comparative analysis which has been made by the Respondents in their order dated 31.12.2008. We take the extracts of the same :-
Parameter Surveyor Survey Assistant Method of recruitment promotion or direct recruitment 33 1/3% Surveyors are recruited through LDCE from Div.II GradeII. The remaining 662/3% Surveyors are recruited directly through open competition from those who are B.Sc. with mathematics. Survey Assistant are recruited by promotion through DPC from Div. II Grade II from those who possess educational qualification intermediate with mathematics.
Educational qualifications both for promotion and direct recruitment, if any. B.Sc. with Maths for direct recruitment and Stereoscopic Fusion test. Intermediate with mathematics for those who were selected through LDCE among Div.II Grade II. Intermediate with maths and promotion through DPC, seniority cum fitness.
Promotional post and pay scale attached to such post Officer Surveyor and pay scale Rs.6500-10500 Officer Surveyor and pay scale Rs.6500-10500 Feeder post and pay scale attached to such post. (i) Initially appointed as TTT A pay scale Rs.3050-4590.
(ii) Surveyors during training period get pay scale of Rs.3050-4590 and after completion of two years training they are classified as Surveyor in the pay scale of Rs.5000-8000. This was enhanced to Rs.5500-9000 with effect from 01.01.1996. In pursuance of directions of Honble CAT. Initially appointed as TTT B, pay scale Rs.3050-4590 and Group C Div.II Grade II through LDCE in the pay scale of Rs.4500-7000.
Duties and responsibilities (i) They are generally deployed as detachment officer for carrying out instrumental work related to control work required for surveying and mapping.
(ii) Deployed as camp officer in the field to supervise the plane-tabling camp and he works as section officer in recess for carrying out the supervision of mapping work (cartographic work) (i) Deployed as section officer for supervision of mapping work(cartographic) also specialized in examination of fair mapping sheets etc.
(ii) In the field deployed as camp officer for supervision of plane-tabling camp et., and can be employed as detachment officer for instrumental work similar to surveyor.
Area and deployment Cartographic work as well as field work. Cartographic work as well as field work.
6. The above table brings out the clear cut distinction between the Surveyors and Survey Assistants. The first differential is in respect of the method of recruitment. As per the Rules, we find 33 1/3% of the Surveyors posts are to be filled by LDCE and 66 2/3% are recruited directly through open competition. In contrast, the Survey Assistants are recruited by promotion only through the process of Departmental Promotion Committee from Division II to Grade I.
7. The second distinction which has been brought out in the Table is about the educational qualifications prescribed as eligibility criteria to be considered for appointment as Surveyors and Survey Assistants. In case of (a) Surveyors (direct recruitment) the educational qualification is B.Sc with mathematics and (b) Surveyors through LDCE, Stereoscopic Fusion test, Intermediate with mathematics. Whereas the educational qualification for the Survey Assistants is Intermediate with Maths and promotion through DPC under the parameters of seniority-cum-fitness.
8. Third set of distinction has been indicated in the feeder posts in which the Surveyors and Survey Assistants are initially appointed. Surveyors are initially appointed as TTT A and Survey Assistants are initially appointed as TTT B. Though the pay scales of TTT A and TTT B are same (Rs.3050-4590), but they are recruited through two different processes.
9. In view of the above three clear sets of distinctions, we find that Survey Assistant posts are not wholly and fully comparable in all respects with the Surveyor Posts. The test that is provided to grant pay parity is specifically that both the categories of employees should be fully and wholly comparable with each other and in such an event the pay parity would be considered to be granted. But the present case does not clear the said test.
10. Learned Counsel for the Applicant has relied on large number of case laws to bring home the argument that the Survey Assistants can be functionally equated with Surveyors and, therefore, they would be entitled to pay parity :- (i) Ajay Jadav Vs. NTR University [JT 1999 (6) SC 596] ; (ii) Randhir Singh Vs. UOI [AIR 1982 (SC) 879]; (iii) Bharat Sanchar Nigam Ltd. & Otehrs Vs. Abhishek Sukla and another [2009 (2) SCC (L&S) 54]; (iv) Union of India Vs. Kuldeep Singh [2004 (2) SCC 590] ; (v) S. R. Dheer and others Vs. UOI [OA No.164/2009]; (vi) UOI Vs. Mohinder Singh 2008 [2008 (1) SLJ SC 131] and (vii) Nehru Yuva Kendra Sangathan Vs. Rajesh Mohan Sukla and Others [JT 2007 (9) SC 292]. We have gone through these case laws. In MA No.2335/2009, moved by the Applicants, it has been prayed that the issues raised by them are squarely covered by the judgment of this Tribunal in the case of S. R. Dheer and Others versus Union of India [OA No.164/2009 decided on 19.2.2009], and, therefore, they filed the MA to prepone the haring for allowing the case. We have gone through these case laws and the judgments of Honble Supreme Court and of this Tribunal in great detail. We find that in view of facts of the present OA, those in the referred cases are far different. Hence, the law and ratio laid in those case laws are not applicable in the present case. We also have gone through some more judgments of Honble Supreme Court and we would like to dwell on the settled legal position in the matters of pay parity.
11. The settled law in the matters of parity of pay scales, equal pay for equal work, is that the Pay Commission or the expert Committee are to examine in detail all the matters of different posts being equated. The role of the Tribunal is to interpret the same to avoid arbitrariness and individual discrimination. The issue of equal pay for equal work was dealt in a catena of Apex Court decisions. In the cases of K.T. Veerappa and others Vs State of Karnataka and Others ( (2006) 9 SCC 406), Chairman Cum Managing Director, National Textile Corporation Ltd. and Others, Vs NTC (WBAB & O) Ltd. Employees Union and others {(2003) 11 SCC 31) and Union of India Vs Dineshan K.K. (2008) 1 SCC 586, the Honble Apex Court considering the issue of parity in employment and analyzing the doctrine of equal pay for equal work assuming the status of fundamental right decided that though it is the domain of expert body like Pay Commission to determine pay structure, yet judicial review is not altogether excluded. In this regard, decisions of the Honble Supreme Court clearly direct that the doctrine of equal pay for equal work when demanded under Article 14 of the Constitution of India, the forum to decide fixation of pay and removal of anomalies is the executive and not always lie in the Courts. Only in rare cases of arbitrary decisions of the Government or deliberate negligence to take decision in settling anomalies, the Courts should interfere and issue directions on the same. The Honble Supreme Court in the Judgment of Civil Appeal No.3518 of 1997 decided on July 10, 2002, State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, held as follows :-
The claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court hold the order passed by State Government to be unsustainable, ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same.
12. Having considered the rival contentions and taking the facts of the 5th CPC in detail, we come to the considered conclusion that there are points of distinguishable features between the two posts (Surveyors and Survey Assistants) in respect of channel of recruitment, eligibility and the vertical hierarchy. Therefore, we do not find any ground for us to intervene in the decision taken by the Respondents in OM dated 31.12.2008. In the result, we uphold the validity of the said OM.
13. Considering the full facts and circumstances of the case, the settled legal position and our detailed analysis within, we come to the conclusion that the Applicants have not made out a case in their support. The OA, being devoid of merits, is dismissed. There is no order as to costs.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber)
Member (A) Member (J)
/pj/