Central Administrative Tribunal - Ernakulam
Confederation Of All India Central ... vs Union Of India Represented By Secretary ... on 6 April, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.709/2013
Wednesday, this the 6th day of April, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
1. Confederation of All India Central Govt. Stenographers Association,
represented by its General Secretary, Harisuthan,
S/o.G.Madhavan Unnithan, Steno Grade D, Stenographer,
O/o.The Sr. Superintendent of Post, Kollam - 691 001.
Residing at Nadukunnil, Kizhakkethil,
Navaneetham, Kadika, Kaithaparambu P.O.,
Enathu, Pathanamthitta - 691 526.
2. M.Harisuthan,
S/o.G.Madhavan Unnithan,
Steno Grade D, Stenographer,
O/o.The Sr. Superintendent of Post, Kollam - 691 001.
Residing at Nadukunnil, Kizhakkethil,
Navaneetham, Kadika, Kaithaparambu P.O.,
Enathu, Pathanamthitta - 691 526.
3. P.S.Anirudhan,
S/o.P.Sreedharan,
Stenographer Grade D,
O/o.The Principal Accountant General (SGSA),
Audit Bhavan, AG's Office P.O., Statue, M.G.Road,
Thiruvananthapuram - 695 001.
Residing at Goutham Vihar, Punukkannur,
Perumpuzha P.O., Kollam - 691 504.
4. Liji.S.R.,
D/o.V.Raghunathan,
Stenographer Grade D/Gr.III,
O/o.The Commissioner of Central Excise & Customs,
ICE Bhavan, Press Club Road, Trivandrum - 695 001.
Residing at Ketharam, TC 43/666(2), NKRA - 50,
Neelattinkara, Kamaleswaram, Manacaud (PO),
Trivandrum - 695 009.
5. K.P.Sreenivasan,
S/o.late V.K.Parameswaran,
Stenographer Grade D/Gr.III,
O/o.The Commissioner Income Tax (Appeals),
Aayakar Bhavan, Mananchira, Kozhikode - 673 001.
Residing at Sreenidhi, Near Pisharikav Temple,
Edakkad, P.O. West Hill, Kozhikode - 673 005.
6. G.Ramadas,
S/o.N.Gopalachar,
Steno Grade D, Stenographer State,
O/o.The National Commission for S.Cs,
Ministry of Social Justice & Empowerment,
Government of India TC 24/547(1),
Opp.Thycaud HPO, Thycaud, Trivandrum - 695 014.
Residing at Guru Priya, ENRA 20, TC 36/663,
Enjackal, Vallakkadavu P.O., Trivandrum - 695 008.
7. M.P.Sivakumar,
S/o.C.P.Sethukumar,
Stenographer Grade - I,
Regional Passport Office,
Panampilly Nagar, Cochin - 36.
Residing at Nandanam, Nr.Yashoram Flats,
Nirappathu, Chottanikkara P.O., Ernakulam. . . . . Applicants
(By Advocate Mr.V.Sajith Kumar)
Versus
1. Union of India represented by Secretary to the Government,
Department of Personnel and Training,
Ministry of Personnel and Training,
Government of India, New Delhi - 110 001.
2. Secretary to Government,
Department of Expenditure,
Ministry of Finance, Government of India,
New Delhi - 110 001. . . . . Respondents
(By Advocate Mr.N.Anil Kumar,Sr.PCGC [R])
This application having been heard on 4th March 2016, the Tribunal on
6th April 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants working as Stenographers in the Sub-Ordinate offices are aggrieved by the inaction on the part of the respondents for refusing to consider the claims for retention of historical parity in pay with that of Stenographers of Central Secretariat Service. The applicants who are Stenographers in the subordinate offices, and the Stenographers of Central Secretariat Service were enjoying historical parity in pay in various grades. This was recognized by the reports of the 5 th and 6th Pay Commissions as well as 1986 Arbitration Award. Inspite of the same, the applicants were denied parity in pay without justifiable reasons.
2. It is submitted that the applicants and the Stenographers of Central Secretariat were recruited through the same selection procedure by the Staff Selection Commission or as authorized by them. Having passed the same examination based on same eligibility condition and doing same nature of work, they aver that they are entitled to be treated equally. In this case Pay Commission recommended parity of pay. The tables produced in the O.A substantiate the historical parity enjoyed by the Stenographers of the subordinate offices and the Secretariat Service. The Pay Commission had recommended parity in pay. The Government cannot reject the recommendations without sufficient reasons. The Pay Commission report though not binding had to be accepted and implemented in accordance with law. As held in State of Punjab vs. Amar Goyal 2005 SCC (L&S) 910, once Pay Commission recommendations are accepted, the benefit of Pay Commission on the doctrine of equal pay for equal work cannot be denied to the categories covered under the recommendations. The principle of parity recommended by the 6 th CPC has been accepted by the Government as on earlier occasion vide arbitration award of 1986. However, it is neither carried forward nor sustained in subsequent revision of pay scale of the respective cadres. They are entitled to the benefit for parity with effect from 1.1.2006, the date of implementation of the 6 th CPC report at par with CSSS. The relief sought is for a declaration that the applicants who are working as Stenographers in various grades under subordinate Stenographers Secretariat Service with various department under the Central Government are entitled to pay parity with their counter parts in Central Secretariat Stenographers Service and direct the respondents to give them this parity in pay with effect from 1.1.2006 with all consequential benefits. They also seek issue of a direction to the respondents to grant parity of pay for entry level Stenographers in field offices with Stenographers of CSSS by granting automatic non functional upgradation on completion of 5 years within grade pay Rs.4200/- and grade pay of Rs.4600/- for those in Steno Grade I and grade pay of Rs.4800/- for the Private Secretaries with such automatic upgradation as applicable Stenographers of CSSS and grant all consequential benefits with effect from 1.1.2006.
3. Respondents 1 & 2 in their reply statement submit that as per DOPT OM No.35034/4/97-Estt.(D) dated 11.4.2001 regarding recommendation of 5th CPC to Stenographers in Non-Secretariat Central Government Offices, Stenographic assistance at the level of Senior Private Secretary in the pay scale of Rs.7500-12000 (revised to GP of Rs.4800/- and Rs.5400/- in PB-2 after four years) should be allowed to officers of the level of Additional Secretary to the Government of India or equivalent and above in Non Secretariat Central Government Offices. DoPT OM No.10/3/2004-CS II (Part VII) dated 28.10.2005 provides the entitlement of Stenographic assistance at the level of Senior Private Secretary (in the pay scale of Rs.12000-16500, revised to GP of Rs.7600/- in PB-3) or Principal Private Secretary (in the pay scale of Rs.10000-15200, revised to GP of Rs.6600/- in PB-3) to the officers of level of Additional Secretary to the Government of India. In addition Stenographic assistance is also allowed at the level of Steno Grade C (PA) for officers at the level of Secretary/Spl.Secretary/Addl. Secretary in the Central Secretariat. It is obvious from the level of Stenographic assistance allowed in Central Secretariat and Non Secretariat offices that nature of functions and the intensity of stenographic assistance are quite different. As per Clause 10 (1) of DoPT notification dated 29.11.2010 (Annexure R-3), 67.67% of the regular vacancies in the grade of Private Secretary (Scale GP of Rs.4800/-, PB 2 and GP of Rs.5400/-, PB 3 after four years of regular service), Central Secretariat Stenographer Service, shall be filled by promotion on seniority basis and 33.33% through Limited Departmental Competitive Examination. This examination is conducted by UPSC, wherein Personal Assistant (GP of Rs.4600/-, PB 2) are eligible. On the other hand, as per the Model R.Rs circulated vide DoPT OM dated 24.1.2011, the post of Private Secretary (GP of Rs.4600/-, PB 2) in non Secretariat Organizations is to be filled up by selection from Stenographers Gr.I (GP of Rs.4200/-, PB 2). This also establishes that the mode of recruitment in case of the Central Secretariat is qualitatively more stringent, as compared to that in case of non Secretariat Organizations. The existing structure of pay scales of Stenographer in the Subordinate Offices is as under :
S. Prior to 6th CPC Post 6th CPC No Designation Scale Designation Pay scale 1 2 3 4 1 Steno Gr.III 4000-6000 Steno Gr.II PB-1 + GP 2400 2 Steno Gr.II 5000-8000 Steno Gr.I PB-2 + GP 4200 3 Steno Gr.I 5500-9000 4 Private Secretary 6500-10500 Private Secretary PB-2 + GP 4600* 5 Senior Private Secretary 7500-12000 Senior Private Secretary PB-2 + GP 4800 PB-2 + GP 5400 (on completion of four years)
* 6th CPC had recommended the GP of Rs.4200, but the Government vide order of 13.11.2009 upgraded it to Rs.4600. (Annexure R-5)
4. The revision of pay scale in the OA is as under :
(i) In case of Stenographer in the existing Grade Pay of Rs.4200, the Grade Pay sought is Rs.4600 at par with PA of CSSS.
(ii) In case of Private Secretary in the existing Grade Pay of Rs.4600, the Grade Pay sought is Rs.4800 at par with PS of CSSS.
5. The respondent would argue that the above issue has to be seen in the light of the recommendations of the 6 th CPC contained in Para 3.1.14 of its report, relating to non secretariat organizations including stenographers therein, and the recommendations contained in Para 3.1.9 of its report relating to Central Secretariat including post of Central Secretariat Stenographers Service. In respect of Non-Secretariat organizations, the 6 th CPC recommended the following pay scales in case of Stenographers :
(i) In case of posts including Steno Grade - II in the pre-revised pay scales of Rs.4500-7000/Rs.5000-8000, the Commission recommended the GP of Rs.4200/-. This has been accepted by the Government.
(ii) In case of posts including Steno Grade - I in the pay scale of Rs.5500-9000, the Commission recommended the GP of Rs.4200/-. This has been accepted by the Government.
(iii) In case of posts including Private Secretary in the pay scale of Rs.6500-10500, the Commission recommended the GP of Rs.4200/-.
However, this has been subsequently upgraded to the GP of Rs.4600/- in terms of this Department's OM dated 13.11.2009.
(iv) In case of posts including Senior Private Secretary in the pay scale of Rs.7500-12000, the Commission recommended a two tier structure, comprising the GP of Rs.4800/- and GP of Rs.5400/- after 4 years. This has been accepted by the Government.
6. On the other hand, in case of Central Secretariat Stenographers Service, as per the recommendations contained in Para 3.1.9 of its report read with Para 2.2.18 the following pay structure for Stenographers already in place in Central Secretariat has been given :
(i) Steno D - Pre-revised pay scale Rs.4000-6000 and Revised GP of Rs.2400/-.
(ii) PA - Pre-revised pay scale Rs.6500-10500 (made effective from 15.9.2006) - Revised GP of Rs.4600/-.
(iii) Private Secretary - Pre-revised scale Rs.6500-10500 and Revised two tier structure, GP of Rs.4800/- and Rs.5400/- after 4 years.
(iv) Principal Private Secretary - Pre-revised scale Rs.10000-15200 and Revised GP of Rs.6600/-.
(v) Senior Principal Private Secretary - Pre-revised scale Rs.12000- 16500 and Revised GP of Rs.7600/-.
(vi) Principal Staff Officer - Pre-revised scale Rs.14300-18300 and Revised GP of Rs.8700/-.
7. The 6th CPC has kept separate pay structure of Stenographers in Secretariat and Non-Secretariat organizations. The scale of pay of PA in the CSSS was revised from Rs.5500-9000 to Rs.6500-10500 in the year 2006 itself, whereas the report of the 6 th CPC was submitted in March, 2008 and, hence, the 6th CPC was fully aware of this fact and yet the Commission did not recommend for any upgradation of the post of Steno Grade I in the subordinate offices; rather the Commission recommended a common scale/merged scale for posts of Steno Gr.II, Gr.I and PS existing in subordinate offices in the pre-revised scales of Rs.5000-8000, Rs.5500- 9000 and Rs.6500-10500 by recommending a common GP of Rs.4200. Based on the order of the Department of Expenditure issued on 13.11.2009, posts in the pre-revised scale of Rs.6500-10500 have been placed in a higher GP of Rs.4600. Consequent upon revision of pay scale of PA in the Central Secretariat from Rs.5500-9000 to Rs.6500-10500 with effect from 15.9.2006 as per the orders dated 25.9.2006 and consequent grant of Grade Pay of Rs.4600 in this Grade as per the orders dated 16.11.2009, it was specifically mentioned in the orders dated 16.11.2009 that in order to continue to maintain parity between Field and Secretariat offices, introduction of a level in the hierarchy of Central Secretariat having Grade Pay of Rs.4200 in the Pay Band 2 between the UDC and Assistant is necessary. In pursuance of this decision, an order was issued by DoPT on 22.6.2011, creating a new grade in the Grade Pay of Rs.4200 in the Central Secretariat Stenographer Service. Stenographers Grade D (Grade Pay of Rs.2400) are eligible for placement in the Grade Pay of Rs.4200 on completion of 5 years of approved service. Thus, it is obvious that a Grade Pay corresponding to the same in case of Non-Secretariat offices at the level of Rs.4200 has been created in the Central Secretariat and this being so there is no basis for equating this Grade Pay with the next higher Grade Pay of Rs.4600.
8. So far as the parity between the post of PS in the Subordinate Offices, which was in the pre-revised pay scale of Rs.6500-10500 and which has been placed in the revised Grade Pay of Rs.4600, with the post of Private Secretary in the Secretariat, which is in the Grade Pay of Rs.4800, is concerned, the 6th Central Pay Commission in para 3.1.9 had made a specific recommendation for placing the post in Central Secretariat in the Grade Pay of Rs.4800 with Grade Pay of Rs.5400 after 4 years. On the other hand, in the case of Subordinate Offices, the 6 th CPC recommended the Grade Pay of Rs.4800 (Grade Pay of Rs.5400 after 4 years) for the post of Senior Private Secretary in case of Subordinate Offices, who were in the pre-revised scale of Rs.7500-12000 and not in the scale of Rs.6500-10500. Thus, the 6th CPC did not recommend for parity between post of PS in Non- Secretariat in the scale of pay of Rs.6500-10500 vis-a-vis to the post of PS in the Secretariat.
9. Heard the counsel for the parties and considered the written submissions made and various court orders produced in support of contentions made. The applicants who are working as Stenographers in various grades in various Central Government Departments under Subordinate Stenographers Secretariat Service are seeking pay parity with their counterparts in Central Secretariat Stenographer Service (CSSS) with effect from 1.1.2006 with all consequential benefits. This pay parity also includes granting automatic non functional upgradation on completion of 5 years of service with GP Rs.4200 and Grade Pay of Rs.4600 for Steno Grade I and GP Rs.4800/- for Private Secretaries with automatic upgradation as applicable to Stenographers of CSSS with consequential benefits with effect from 1.1.2006, the date of 6th CPC implementation.
10. The applicants are working as Stenographers in Subordinate/Field Offices of various Central Government Offices located in different parts of the country. They are treated differently from their colleagues working in the headquarters of their respective departments in the capital city of Delhi, though they claim that they do similar type of work, have been recruited with the same educational qualification and fulfill the same recruitment criteria. The common recruitment notification provides an option to work either in the CSSS or in the Subordinate offices, both placed under the Government of India. The appointments are also made from a common rank list based on merit cum option submitted by the candidates. Applicants submit that there was a historical pay parity between Stenographers in CSSS and the Subordinate/Field Offices. The field offices being small units opportunities for promotion are less as compared to CSSS which, having a larger canvas has better promotion opportunities as it operates in common over various Ministries/Departments of the Government of India and is not restricted to individual services/departments as in the field set up. The difference in promotional opportunities despite similar nature of work is brought out by the applicants.
11. Applicants contend that entry grade of Steno Grade D is with Grade Pay Rs.2400/- in both field offices and CSSS. On completion of 5 years the Steno Grade D in CSSS is given GP of Rs.4200 on the same post. The Stenographer Grade D in field offices continue to draw the initial Grade Pay. The Steno in CSSS has the opportunity of reaching the post of Senior Private Secretary/Principal Staff Officer with GP Rs.7600/- in view of the large canvas in which the service operates with larger number of Ministries/Departments. The Steno in field offices has to content with post of Senior Private Secretary with GP Rs.4800/-.
12. There have been several rounds of litigations by Stenographers of individual subordinate field offices culminating with ruling in favour of field offices. This has created a further disparity as some subordinate field offices are the beneficiary of pay parity with CSSS on the basis of judicial pronouncements whereas other have not been extended the benefit. The pay parity between CSSS and Subordinate Offices was also subject to arbitration, ruling in favour of persons like the applicant, by extending scale of pay of Steno of CSSS to the Stenographers of Subordinate Offices with effect from 1.1.1986. Thus pay parity was established from 1986 onwards. But time bound upgradation in Subordinate Offices on lines similar to CSSS was not acceded to.
13. The 5th CPC merged the scale of Rs.2000-3200 of Private Secretaries in Subordinate Offices with pay of Private Secretary of Rs.2000-3500 in the CSSS into a common scale Rs.6500-10500 thereby taking cognisance of the earlier litigation for parity and the 1989 arbitration award of parity of pay scales. Similarly the Stenographers Grade I in the subordinate service pre- revised scale of Rs.1640-2900 and Grade C of CSSS was revised to Rs.5500-9000.
14. The above parity was disturbed when Stenographer Grade C were given an upgradation, outside the Pay Commission, from Rs.5500-9000 to Rs.6500-10500 on 25.9.2006 without extending the similar benefit to the subordinate offices. This superiority was maintained in the 6 th CPC replacement scale effected. This may have been done to restore the earlier disparate and superior status of CSSS but ignoring the judicial review of parity and the subsequent 5 th CPC attempt to retain this parity between subordinate offices and CSSS. The superior status may be justified on the ground that these offices of CSSS have to work with Cabinet Ministers, Ministers of State etc. attend to Parliament related functions and duties and functions of Parliamentary Committees etc. But what is ignored to be considered is that the material and data for the above work is drawn from the data supplied by the subordinate/field offices. As a matter of fact most of the work is generated and compiled in the field offices and in these days of computer and internet, the data transferred by field offices on the net is used without much modification in the CSSS occupied offices. The duties and responsibilities of Stenographers as circulated by the Department of Personnel are same for the Stenographers of all cadres including CSSS. Therefore, any claims of superiority in the current scenario of email and internet is laid to rest here.
15. The existing pay structure/Grade Pay in the CSSS/Attached Offices and Field/Subordinate Offices have been brought out in the following comparative table :
1.Stenographers of the Central Secretariat & 2. Stenographers Non-Secretariat :
Attached Offices Subordinate/Field Offices Entry level Steno Gr.D Rs.2400/- Steno Gr.D/III Rs.2400/- Upgradation in Steno Gr.D Rs.4200/- Although the Steno Gr.III Rs.2400/- the same post as post is now upgraded to Steno Gr.D after Steno Gr.II (new), no 5 years of service upgraded grade pay is (automatic) given.
Next promotion Steno Gr.II/C Rs.4600/- Grade II & I (erstwhile Rs.4200/-
posts) (2 promotions
received in the old pattern
are merged)
Next promotion PS Rs.4800/- PS Rs.4600/-
Next promotion Automatic Rs.5400/- No such upgradation
upgradation
to Rs.5400/-
after 4 years
Next upgradation PPS Rs.6600/- Sr.PS (only one post exist Rs.4800/-
in few departments)
Next promotion Sr.PPS Rs.7600/- No such post exists
16. The issue that comes up for consideration is, is this a case where whenever parity is restored by the judicial forum or by arbitration, there is an executive attempt to restore the superiority of CSSS which existed before the first attempt at parity was made. The applicants have also not made a cogent effort to consolidate the data made available in various annexures as arguments favouring their assertions. They are produced as disparate documents without linking the assertions thereon to the reliefs sought in the O.A and using them as arguments thereon in support of their case. Even in the judicial pronouncements the case of applicants was dismissed in O.A.No.151/1991. But in the R.A filed in the case, on the ground that full relevant facts were not placed earlier, the prayer was allowed on the ground of equal pay for equal work and similarities of nature of work, duties and responsibilities of Stenographer Grade C in CSSS and Stenographer Grade I in subordinate offices.
17. In the Civil Appeal No.8173/2003 Union of India vs. Tarit Ranjan Das filed in the Apex Court the argument bordered on whether the onus of proving the concept of equal pay for equal work was to be established by the employer or employee. The Apex Court while rendering the order in this Civil Appeal referred to its judgment in Union of India vs. Pradip Kumar Dev 2000 (8) SCC 580 wherein while dealing with a similar question had in para 8 held :
'8. In our considered view, the Division Bench of the High Court was not right and justified in straight way giving direction to grant pay scale to the respondent when there was no material placed before the Court for comparison to order to apply the principle of 'equal pay for equal work' between the Radio Operators of CRPF and the Radio Operators working in civil side in the Central Water Commission and the Directorate of Police Wireless. In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in the absence of such material it was not possible to grant relief to the respondent. No doubt, the Directorate of CRPF made recommendations to the Pay Commission for giving higher pay scales on the basis of which claim is made by the respondent for grant of pay scale. The factual statements contained in the recommendation of a particular department alone cannot be considered per se proof of such things or they cannot by themselves vouch for the correctness of the same. The said recommendation could not be taken as a recommendation made by the Government. Even otherwise a mere recommendation did not confer any right on the respondent did not confer any right on the respondent to make such a claim for writ of mandamus.'
8. Yet, in another decision in State Bank of India vs. M.R. Ganesh Babu 2002 (4) SCC 556 ) a Bench of three learned Judges of this Court, while dealing with the same principle, in para 16 has expressed that : (SCC p.563) '16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. 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 made a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scale of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected to an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court.' (Also see State of Haryana and Anr. vs. Tilak Raj and others, 2003 (6) SCC
123) and Orissa University of Agriculture & Technology and Anr. vs. Manoj K. Mohanty 2003 (5) SCC 188 ).
9. In this case, the Tribunal and High Court seem to have completely lost sight of the fact that the Fifth Pay Commission specifically considered the question and held that there is no question of any equivalence. The Commission observed as follows :
'46.34. We have given our careful consideration to the suggestions made by Associations representing Stenographers in Offices outside the Secretariat in the light of observations made by the Third CPC. The Commission had observed that as a general statement, it was correct to say that the basis nature of a Stenographer's work remained by and large the same whether he was working with an officer in the Secretariat or with an officer in a subordinate office. The Commission was of the considered view that the size of the Stenographer's job was very much dependent upon the nature of work entrusted to that officer and that it would not be correct, therefore, to go merely by the status in disregard of the functional requirement. By the very nature of work in the secretariat, the volume of dictation and typing work was expected to be heavier than in a subordinate office, the requirement of secrecy even in civil offices of the secretariat could be very stringent. Considering the differences is the hierarchical structures and in the type of work transacted the Commission was not in favour of adopting a uniform pattern in respect of matter listed in the preceding paragraph. To our mind, the observations of the Third CPC are as relevant today as they were at that point of time and we are not inclined to overlook them totally. In view of the abovementioned distinguishable feature, we do not concede the demand for absolute parity in regard to pay scales between stenographers in offices outside the secretariat and in the secretariat notwithstanding the fact that some petitioner stenographers Grade II have got other benefit of parity in pay scale through courts. However, pursing the policy enunciated by the Second CPC that disparity in the pay scale prescribed for stenographers in the Secretariat and the non- secretariat organizations should be reduced as far as possible, we are of the view that Stenographers Grade II should be placed in the existing pay scale of Rs. 1600- 2660 instead of Rs. 1400-2300/ Rs. 1400-2600'.
10. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any data. It is trite law that it is not open for any Court to sit in judgment as on appeal over the conclusion of the Commission. Further the Tribunal and the High Court proceeded as if it was the employer who was to show that there was no equality in the work. On the contrary the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like, responsibilities, reliabilities, experience, confidentiality involved, functional need and requirements commensurate with the position in the hierarchy, the qualification required which are equally relevant.
11. In State of W.B. and others vs. Hari Narayan Bhowal and others 1994 (4) SCC 78 ) it was observed :
'This Court in the case of Delhi Veterinary Assn. vs. Union of India (1984) (3) SCC 1) said that in addition to the principle of 'equal pay for equal work', the pay structure of the employee of the Government should reflect many other social values. It was said :
'The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level of which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues, of promotion available and horizontal and vertical relatively with other jobs in the same service or outside are also relevant factors.'
12. In the case of State of U.P. vs. J.P. Chaurasia 1989 (1) SCC 121 ) it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts by the Competent Authorities constituted for the purpose and Courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. vs. Pramod Bhartiya 1993 (1) SCC 539 ) by a three-Judge Bench of this Court. In the case of Shyam Babu Verma vs. Union of India 1994 (2) SCC 521 ) a claim for equal pay by a group of Pharmacists was rejected saying that the 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 that the classification made was unreasonable.
13. These aspects have been completely lost sight of by the Tribunal and the High Court.
14. The Tribunal passed the impugned order by reviewing the earlier order. A bare reading of the two orders shows that the order in review application was in complete variation and disregard of the earlier order and the strong as well as sound reasons contained therein whereby the original application was rejected.
The scope for review is rather limited and it is not permissible for the forum hearing the review application to act as an appellate authority in respect of the original order by a fresh and rehearing of the matter to facilitate a change of opinion on merits. The Tribunal seems to have transgressed its jurisdiction in dealing with the review petition as if it was hearing original application. This aspect has also not been noticed by the High Court.
15. Looked at from any angle, the judgment of the Tribunal in review application and of the High Court confirming it have no leg to stand. They deserve to be set aside which we direct. The appeal is allowed.'
18. The applicants have produced the above judgment as Annexure A-6 but appear to have overlooked perusing the advice rendered by the Apex Court dismissing the judgment of the Tribunal in R.A and High Court judgment while considering a similar case. The Apex Court has clearly laid down in para 8, 11 and 12 the issues which are required to be addressed and considered by both the applicants and respondents while presenting their case before the judicial forum for adjudication. The applicants have made a cursory presentation of their case without adducing to the observations made in the above Apex Court judgment for a proper adjudication of the matter. The respondents have also made an equal and opposite response. The applicants have also not given any arguments as to why the suggestions made by the Apex Court in the above case have not been adhered to while presenting their case. It is also observed that the Department of Personnel who is the cadre controlling authority of matters relating to the service has not been impleaded as a party to explain why the parity which was sought to be established from time to time is being disturbed with subsequent orders to establish superior status. For adjudicating on the principles of equal pay for equal work, it is necessary that the facts raised in above paras be brought out in the body of O.A so that a decision on the merit of the relief sought can be arrived at. Though applicants have produced the above judgment, they have apparently not perused or followed the principles laid thereon for a proper adjudication of a similar matter.
19. The case is dismissed not on merits but for not conforming to the principles laid down by the Apex Court for adjudication of such matters. The applicants are given the liberty to reapproach the Tribunal with an O.A along the above lines indicated. In view of the order in the O.A., M.A.No.180/00011/2014 is closed.
(Dated this the 6th day of April 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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