Allahabad High Court
Union Of India vs Central Administrative Tribunal ... on 13 March, 2014
Bench: Rajes Kumar, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 33 Case :- WRIT - A No. - 604 of 2002 Petitioner :- Union Of India Respondent :- Central Administrative Tribunal Allahabad & Another Counsel for Petitioner :- Vikram Gulati,Aditya Pandey,K.C. Sinha,Rakesh Sinha Counsel for Respondent :- Rajesh Tiwari,S.C. Hon'ble Rajes Kumar,J.
Hon'ble Ashwani Kumar Mishra,J.
The present writ petition has been field by the Union of India through the Director, Advanced Training Institute, Udyog Nagar, Kanpur, challenging the judgment and order dated 27.3.2001 passed by the Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 1835 of 1993. The Tribunal by the order, under challenge, has allowed the claim of the applicant-respondent and directed to grant pay scale of Rs. 1640-2900 to the applicant w.e.f. 1.1.1986 alongwith arrears together with 6% interest on the basis of judgment passed by the Principal Bench of the Tribunal in Original Application No.157 of 1990 ( C.P.W.D. Translator Association Vs. Union of India and others), decided on 10.1.1992.
The Tribunal was approached by the applicant/ respondent stating that he joined the service of Union of India on 17.1.1961 and was posted as Junior Hindi Translator on 31.12.1995. Thereafter, he was promoted to the post of Senior Hindi Translator in the pay scale of Rs. 550-800 vide office order dated 5.7.1984.This scale has been subsequently revised to 1600-2660, in which petitioner was placed.
The claim of the applicant-respondent, before the Tribunal, was that Junior Hindi Translators and Senior Hindi Translators are working in the different departments of the Union of India for performing similar duties. It is claimed that while posts with a higher pay scale of Rs. 1640-2900 of Senior Hindi Translator was contemplated in the Central Secretariat, Official Language Service Cadre, constituted under the department of official language, however other departments for the same work, lesser scale of Rs. 1600-2660 was available. Further case of the applicant was that 4th Pay Commission has recommended grant of pay scale of Rs. 1640-2900 to the Senior Hindi Translator. The 4th Pay Commission also recommended that model rules for these posts be framed to bring about uniformity amongst Hindi Translators, working in different departments, who are governed by separate set of service rules. The applicant also relied upon on earlier adjudication made by the Principal Bench of the Tribunal, which dealt with the claim of Hindi Translators working in the Armed Forces headquarter/ Inter Service Organization at New Delhi.
The claim was opposed by the petitioner, by contending that service conditions of the applicant were governed by separate service rules and the rules applicable in the case of Central Secretariat or its attached/ subordinate offices have no application in the instant case. It was also pleaded that differences exist in the work and duties of the applicant in comparison to the employees of Secretariat, apart from the fact that service rules of recruitment, also vary. It was also stated that the department of expenditure has not approved the higher scale claimed.
The Tribunal while passing the judgment under challenge has noticed the respective stand of the parties, including the plea in opposition that duties and responsibilities in different department vary. The Tribunal, however, proceeded to allow the claim on the basis of earlier adjudication in O.A. No. 157 of 1990, which in turn relied upon ration in O.A. No. 1310 of 1989 V.K. Sharma Vs. Union of India, relying upon the judgment in Randhir Singh Vs. Union of India, 1982 (1) SCC 618. After observing that question involved in this matter is same as was involved in issue before the Principal Bench of Central Administrative Tribunal, therefore, the relief prayed for by the respondent-applicant has been allowed. The Union of India has challenged the judgment of the Tribunal by filing present writ petition.
We have heard Shri Aditya Pandey, advocate for the petitioner and Shri Rajesh Tiwari, who has appeared on behalf of the applicant-respondent, and have perused the record.
From the respective pleadings of the parties, it transpires that the service rules, which governed the service conditions of the applicant-respondents was different from the rules which regulated the service conditions of Senior and Junior translators employed in Armed Forces Headquarter and those working in Central Secretariat Official Language Service Cadre (CSOLSC in short) with whom claim of parity has been allowed by the Tribunal. Moreover, it was pleaded in the counter affidavit before the Tribunal that differences exists in the work and duties of the Senior Translators with whom parity has been claimed.The department of expenditure had also not approved the pay scale of Rs.1640-2900 for the post in question for the department concerned.
Thus the applicability of principal of equal pay for equal work, as claimed by the respondent-applicant was required to be adjudicated in the back drop of facts noticed above.
The Tribunal noticed the respective plea of the parties but without any adjudication on the question raised, it proceeded to apply the adjudication of the Tribunal in O.A. No. 157 of 1990 decided on 10.1.1992 upon the instant case. Para Nos. 1 to 6 of the order of the Tribunal dated 27.3.2001, which is under challenge, is reproduced below:-
"1. The applicant Sri S.K. Dwivedi has come up before this tribunal seeking the relief to the effect that the order dated 28.10.1986 by respondent no.2 and the order dated 15.2.1987 by the respondent no.1 be set aside and the respondents be directed to grant pay scale of Rs.1640-2900/- to the applicant as per recommendation of 4th Pay Commission, which were accepted by the Government w.e.f.1.1.1986 with all consequential benefits and interest thereon @ 12% per annum. The applicant has a case that duties and responsibilities of the applicant are the same as are applicable for the Senionr Hindi Translator of C.S.O.L. Service in the scale of 1640-2900/- and denial of this scale to the applicant would amount to unreasonable classification which is not permissible under Article 16 of the Constitution.
2. The respondents have contested the case, filed the counter reply and supported the impugned orders on the ground that in view of the nature of duties in the different departments, the principle of 'equal pay for equal work' is not applicable in the present case.
3. We have heard Sri Rajesh Tewari, counsel for the applicant and Sri C.S. Singh, counsel for the respondents.
4. Learned counsel for the applicant has based his arguments on the finding by the Principal Bench of this Tribunal in OA No.157 of 1990- C.P.W.D. Translator Association vs. Union of India & Ors. decided on 10.1.1992, wherein the ratio in OA NO.1310/89 V.K. Sharma vs. UOI & Ors. has been relied upon and took guidelines from the decision by the Hon'ble Supreme Court in Randhir Singh vs. UOI & Ors, 1982 SCC (L&S). Learned counsel for the applicant also referred to Annexure-1 wherein there is rather admission on part of the respondents, in the internal correspondence in this matter, that the present matter is squarely covered by the decision taken by the Principal Benc in the above referred cases.
5. Keeping in view the facts and circumstances of the matter and earlier decisions wherein judicial review was engaged to decide the same question, we find that the applicant is entitled to get relief sought for.
6. For the above, the OA is allowed and the respondents are directed to grant pay scale of Rs.1640-2900/- to the applicant as per recommendation of the 4th Pay Commission w.e.f. 1-1-1986 with consequential benefits by way of arrears with interest @ 6% per annum from the date of accrual till the date of payment. There shall be no order as to costs."
We have considered the judgment of Tribunal in O.A. No. 1310 of 1989 which relies upon the judgment in Randhir Singh Vs. Union of India and others, reported in (1982)1 SCC, 618 which related to a claim for parity in pay scale of drivers engaged in Delhi Police Force qua their counterparts engaged in Delhi Administration of the Central Government and applying the principle of equal pay for equal work, the claim was allowed by the Apex Court. The judgment in Randhir Singh's case came to be subsequently considered by the Apex Court in the case of Federation of All India Customs and Central Excise Stenographers ( Recognised) and others Vs. Union of India and others, (1988) 3 SCC 91. The Apex Court in the latter decision dealt with a claim of parity in pay of Stenographer and Personal Assistants on the principle of 'equal pay for equal work', between stenographers attached with Level-I officers and the stenographers attached to the Joint Secretaries and officers above that rank. While rejecting the claim of parity, sought on account of similarity of work after noticing the decision in the case of Randhir Singh Vs. Union of India and others, as well as other decisions of the Apex Court, the Apex Court held as under in paras 10 & 11:-
"10. As is evident the facts of the instant case are entirely different. Here the differentiation is sought to be justified on the similarity of the functional work but on the dissimilarity of the responsibility, confidentiality and the relationship with public etc. In Dhirendra Chamoli and another v. State of U.P., [1986] 1 SCC 637, this Court was concerned with the casual workers on daily wage basis engaged by the Government in different Nehru Yuvak Kendras in the country performing the same duties as performed by the regular Class-IV employees against the sanctioned strength. The claim was allowed with certain directions on the basis of the facts found. See in this connection Union of India & Anr. v. R.G. Kashikar & Anr., AIR 1986 SC 431. In Writ Petition (Civil) Nos. 13097-13176 of 1984, M.P. Singh Deputy Superintendent of Police, C.B.I. and Others v. Union of India & Others, (Judgments Today 1987 1 SC 146), this Court on the facts of that case found that among the employees of the Central Bureau of Investigation, there are two classes of officials deputationists and non-deputationists amongst Sub- Inspectors, Inspectors and Deputy Superintendent of Police. There has been discrimination among two groups with regard to payment of special pay. Special pay related to arduous nature of duties to be performed. Whether they belong to the category of deputationists or non-deputationists payment of different rates of Special pay, it was held in the facts of the case, did not pass the test of classification. This Court reiterated that it was well settled that in order to pass the test of permissible classification of persons belonging to the same class into groups for purposes of differential treatment two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes persons who were grouped together from others left out of the group and that differentia must have a rational relation to the objects sought to be achieved by the law which brings about discrimination between the two groups. In M/s. Mackinnon Mackenzie & Co. Ltd. v. Audrey D'Costa & Anr., (SLP (CIVIL) No. 1265/87 decided on March 26,1987), the question was the different treatment between male and female stenographers. But there differentiation was based on the ground of sex. It was struck down. It will clearly be violative of Article 14 and Article 16 of the Constitution.
11.In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less--it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact. In the light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs. "
(emphasis supplied by us) In the case of Hukum Chand Gupta Vs. Director General ,ICAR and others, 2013(1) 226 (SC), after referring to the various judgments, following observations have been made by the Apex Court:-
"20. We are also not inclined to accept the submission of the appellant that there can be no distinction in the pay scales between the employees working at Headquarters and the employees working at the institutional level. It is a matter of record that the employees working at Headquarters are governed by a completely different set of rules. Even the hierarchy of the posts and the channels of promotion are different. Also, merely because any two posts at the Headquarters and the institutional level have the same nomenclature, would not necessarily require that the pay scales on the two posts should also be the same. In our opinion, the prescription of two different pay scales would not violate the principle of equal pay for equal work. Such action would not be arbitrary or violate Articles 14, 16 and 39D of the Constitution of India. It is for the employer to categorize the posts and to prescribe the duties of each post. There can not be any straitjacket formula for holding that two posts having the same nomenclature would have to be given the same pay scale. Prescription of pay scales on particular posts is a very complex exercise. It requires assessment of the nature and quality of the duties performed and the responsibilities shouldered by the incumbents on different posts. Even though, the two posts may be referred to by the same name, it would not lead to the necessary inference that the posts are identical in every manner. These are matters to be assessed by expert bodies like the employer or the Pay Commission. Neither the Central Administrative Tribunal nor a Writ Court would normally venture to substitute its own opinion for the opinions rendered by the experts. The Tribunal or the Writ Court would lack the necessary expertise undertake the complex exercise of equation of posts or the pay scales.
20-A. In expressing the aforesaid opinion, we are fortified by the observations made by this Court in State of Punjab Vs. Surjit Singh .4 In this case, upon review of a large number of judicial precedents relating to the principle of ''equal pay for equal work', this Court observed as follows:
"19...Undoubtedly, the doctrine of ''equal pay for equal work' is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of ''equal pay for equal work' has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation.....A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of ''equal pay for equal work' requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof."
(Emphasis supplied) We find force in the argument of the counsel for the petitioner that the Tribunal misled itself in granting relief, in the manner it has been done. The Tribunal completely omitted to consider that the service rules of the other departments with whom parity has been claimed were different. There was further no adjudication on the plea of the petitioner that work and duties of the respondent-applicant was different from that of the translators working with the secretariat. The plea of the respondent that payment of scale, as claimed, had not been allowed by the department of expenditure, was also not considered. The principal of equal pay for equal work cannot be extended merely on the ground that nomenclature of the post in two different department is same. It is for the employer to categories the post and to prescribe the duties attached to it. In the absence of assessment of nature and quality of duties performed by the two sets of employees, the mere fact of the nomenclature of the post being same, the claim for equal pay cannot be accepted. We find that the Tribunal in the instant case has not addressed itself to the core issued , which needed adjudication. We further find that necessary ingredients to make out a case of equal pay for equal work was not available on record of the Tribunal. In such circumstances, the grant of benefit of pay scale, as claimed by the respondent-applicant, was wholly unsustainable.
We are further not impressed with the argument of the respondent-applicant that merely because the department of Central Secretariat Official Language Service Cadre had required framing of uniform model service rules and certain recommendations were made by the 4th Pay Commission in Para 10-280, the applicant-respondent is entitled to the pay scale, as prayed for, inasmuch as the service rules of the two continued to remain separate and the recommendation of higher pay scale, admittedly had not been accepted by the department concerned.
In view of the above discussions, we find that the judgment of the Tribunal cannot be sustained and consequently the same is set aside. Since the respondent-applicant had not been able to make out a case for parity in pay scale with the employees of the Central Secretariat Official Language Service Cadre, therefore, the claim petition deserves rejection.
Accordingly, the writ petition succeeds and is allowed. The judgment and order of the Tribunal dated 27.3.2001 is set aside. The claim petition of the respondent-applicant is hereby rejected. However, no order is passed as to costs.
Order Date :- 13.3.2014 n.u.