Central Administrative Tribunal - Delhi
M.L. Saini vs Union Of India on 29 May, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3124/2012 M.A. No.2630/2012 Order Reserved on 29.04.2015 Order Pronounced on: 29.05.2015 Honble Dr. K.B. Suresh, Member (J) Honble Mr. Sudhir Kumar, Member (A) 1. M.L. Saini R/o Block 18/357, Lodi Colony, New Delhi. 2. Yashpal Bakshi 40B, Block-O, Street No.23, New Mahavir Nagar, PO Tilak Nagar, New Delhi. 3. Mahender Kumar, R/o 9884 Bagh Arya, Kishanganj Delhi. 4. Baldev Singh R/o A-136, Fateh Nagar, PO Tilak Nagar, New Delhi. 5. N.K. Aggarwal R/o 196 Sec-1, Sadiq Nagar, Delhi. 6. Pancham Singh Rawat, 16/419, Lodi Colony, New Delhi. 7. Om Bhajan Thapa, R/o 770, Sec-II, Sadiq Nagar, New Delhi. 8. Raj Kumar, R/o 255/37, Faridabad, Haryana. 9. Gyanendra Kumar R/o 11/15, Sector-1, Saket, New Delhi. 10. Ravinder Kumar, 78/7Ext., HB Colony, Gurgaon, Haryana. 11. Jyoti Prasad, 1/4380, Ram Nagar Extn., Shahdra, Delhi. 12. Harminder Singh, R/o 30/1, Double Storey, Ashok Nagar, Delhi. 13. Vipin Kumar, R/o B-212, Brij Vihar, Ghaziabad. 14. Rajinder Prasad, R/o 1127, Lodi Road Complex, New Delhi. -Applicants (By Advocate: Shri V.S.R. Krishna) Versus Union of India Through: 1. The Secretary, Ministry of Earth Sciences, Mausam Bhawan, Lodi Road, New Delhi. 2. The Director General, India Meteorological Department, Mausam Bhawan, Lodi Road, New Delhi. -Respondents (By Advocate: Shri R.N. Singh) O R D E R Per Sudhir Kumar, Member (A):
MA No. 2630/2013 filed under Rule 4 (5) (a) of C.A.T. (Procedure) Rules, 1987 for joining together, is allowed.
2. The 14 applicants of this O.A. are before this Tribunal aggrieved by their placement in the pay scales, which have not been granted by the respondents to them to their satisfaction. They have impugned the order dated 17.07.2012 passed by the respondents, rejecting their request for being placed in the Grade Pay of Rs.4200/- by stating that the issue had already been considered by the Anomaly Committee arising out of the 5th Central Pay Commission (CPC, in short), and the Minutes of the Anomaly Committee dated 11.07.2005 were submitted to the 6th CPC vide letter dated 03.04.2007, but the 6th CPC had recommended only the pay in PB-I of Rs.5200-20200 + Grade Pay of Rs.2800/- as the replacement pay scale for the Mechanical Assistants working in India Meteorological Department (IMD, in short). The applicants have submitted that the impugned order is totally bland, and does not disclose any reasons for the respondents not acceding to the genuine prayers of the applicants, and as a matter of fact even the recommendations of the 6th CPC nowhere disclosed that the Anomaly Committee Minutes were either received by them, or submissions of their reports were considered, or a discussion of the issues arising out of the Anomaly Committee Report.
3. The case of the applicants is that the Mechanical Assistants in the IMD hold a supervisory cadre post, and their posts are comparable posts to those with the same designations in the Railways and other Government Departments. Still in the Railways, the incumbents of the posts of Mechanical Assistants have been placed in the corresponding Pay Band with the higher Grade Pay of Rs.4200/-, while a lower Grade Pay has been recommended for the Mechanical Assistants of IMD, even though their status, duties, responsibilities, and the educational qualifications required for their comparable posts are all similar and comparable.
4. The applicants have submitted that Mechanical Assistants in all the Departments mentioned were in the same pay scale up to the stage of 4th CPC, but anomaly arose only after the 5th CPC recommendations, wherein though the Mechanical Assistants in other departments were placed in the revised pay scale of Rs.5500-9000/-, but those in the IMD were placed in the lower pay scale of Rs.4500-7000/-.
5. The grievance of the applicants was recognized by the Department of Science and Technology, and this anomaly was placed before the reconstituted ad-hoc Anomaly Committee to settle the disputes arising out of the recommendations of the 5th CPC, which Committee noticed that vertical relativity had been disturbed by placing the promotional post of Assistant Meteorologist Grade-II (Foreman) in the IMD in the replacement pay scale of Rs.6500-10500/-, and noticing the unusual gap that exists between the two pay scales of Rs.4500-7000/- and Rs.6500-10500/-, they had recommended that in order to bridge the gap in the two pay scales, the pay scale of Rs.5500-9000/- should be allowed for the post of Mechanical Assistants in IMD also, which would have translated to the same Pay Band along with the Grade Pay of Rs.4200/- after the 6th CPC, according to the applicants before us. The applicants have a grouse that the 6th CPC appears to have over-looked the recommendations of the Anomalies Committee since it did not have the mandate to take care of the anomalies that arose due to the recommendations of the 5th CPC.
6. Placing reliance upon the recommendations of the Anomalies Committee, the applicants have submitted that when a high level Anomalies Committee constituted by the Government itself had recommended the anomaly to be rectified, it was incumbent upon the respondents to grant them the pay scale of Rs.6500-10500 w.e.f. 01.01.1996, with Grade Pay of Rs.4200/- w.e.f. 01.01.2006, instead of the pay scale already given. They have submitted that once it was recommended by the Anomalies Committee constituted by the respondents themselves, there was no need for the matter to have been referred to the 6th CPC, and that the recommendations of the Anomalies Committee (produced by the applicants at pages 30 to 37 of the paper book of their OA) ought to have been implemented automatically, since the recommendations had been made on 11.07.2005, before the 6th CPC pay scales came into operation w.e.f. 01.01.2006. They are aggrieved that in this manner their supervisory status, duties, responsibilities and educational qualifications have been down graded, while those holding similar and comparable posts of Mechanical Assistants in other wings of the Union of India had been granted the higher pay scale of Rs.5500-9000/- by the 5th CPC itself, and this mistake has been further compounded after the recommendations of the 6th CPC. Therefore, the applicants had taken the grounds as follows:-
i) That the action of the respondents in denying to them the scales as recommended by the Anomalies Committee are illegal, arbitrary and against the principles of natural justice, equity and fair play.
ii) That the impugned order is not a reasoned order.
iii) That an anomaly has been perpetuated in between the Mechanical Assistants in other wings of Union of India like Railways and those in the IMD, while up to the stage of the 4th CPC they were all having the same pay scales.
iv) That the categorical recommendations of the Anomalies Committee could have implemented by the respondents themselves, and there was no need to refer the matter to the 6th CPC.
v) That once again the respondents are of the view that the present grievance of the applicants should also be placed before another Anomalies Committee for consideration, when the matter has already been decided by a previous Anomalies Committee, which had made a specific recommendation, and
vi) That under the doctrine of equal pay for equal work the applicants are entitled to the higher supervisory pay scales as a matter of right.
7. In the result, they have prayed for the following reliefs:-
a) to quash the impugned order as illegal and void ab initio;
b) to direct the Respondents to consider granting to the applicants the pay scales as are recommended by the anomaly committee constituted by the respondents themselves and to grant to the applicants all consequential benefits such as arrears of salary and allowances etc. from the date the said amounts become due; and
c) to grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case along with the costs of the application.
8. The respondents filed their reply on 13.02.2013, taking the preliminary objections that no cause of action had accrued to the applicants to file the OA, as no enforceable right of the applicants has been infringed, nor any binding rule or instructions have been violated, and, therefore, the OA deserves to be dismissed on this ground alone. It was further submitted that the applicants had not approached the Tribunal with clean hands, and have suppressed material facts, and had made misleading averments, and on this ground also, the OA deserves to be dismissed with costs.
9. It was further submitted that the applicants have sought grant of higher pay scale/Grade Pay etc. through this OA, while the creation/abolition of posts, grant of pay scales and framing/amendment of Recruitment Rules, falls under the exclusive domain of the Executive, as per the law laid down by the Honble Apex Court in Mallikarjuna Rao vs. State of A.P. (1990) 2 SCC 707, and reiterated in P.U. Joshi & Ors. vs. The Accountant General, Ahmedabad & Ors., 2003 (2) SCC 632, in the first of which cases it had been held as follows:-
It is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution and that the Constitution does not permit the court to direct or advise the executive in the matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive.
10. It was further submitted that the Honble Apex Court has clearly ruled that the examination of pay parity exclusively falls under the domain of the Executive, through the ratio laid down in S.C. Chandra vs. State of Jharkhand 2007 (8) SCC 279 followed in Union of India & Ors. vs. Harinmoy Sen & Ors., 2008 (1) SCC 630. It was, therefore, submitted that the actions and the impugned orders of the respondents being just, proper and bonafide, there is no reason or justification for this Tribunal to entertain the present OA under its extra-ordinary powers of judicial review.
11. It was submitted that in its report the 6th CPC did not make any specific recommendation in respect of IMD, and all the cadres had been given only the corresponding replacement pay scales only. It was submitted that the Anomalies Committee was only an ad-hoc Anomalies Committee set up to settle the anomalies arising out of the implementation of the recommendations of the 5th CPC, but that its recommendations could not be implemented, as by that time the 6th CPC had already been set up, and the Ministry of Finance had advised IMD to take up the matter with the 6th CPC, which is an expert body. It was further submitted that the wisdom of a body like Pay Commission to grant a particular replacement scale to a particular cadre of employee cannot be questioned, as has been tried to be done in this OA, and the claims of the applicants are based on some perceived disparity in the recommendations of the 5th CPC, which do not have any merit any longer, after the 6th CPC had made its recommendations, after taking into account the input given by all the different departments including the discrepancies and anomalies, which had been brought by all the Departments to their notice. It was further submitted that any demand now for redressal of a grievance based on a perceived disparity on the basis of the recommendations of the 5th CPC could not to be held to be tangible at this stage, and it cannot be presumed that the 6th CPC had not applied its mind. It was further submitted that there has to be finality in regard to the pay scales implemented by the Government, and the settled issues, which had been resolved earlier in one manner or the other, cannot now be sought to be reopened through filing an OA like the applicants have tried to do in the present OA.
12. It was again submitted that the grievance of the applicants can best be addressed when a suitable career progression scheme is implemented by the respondents-IMD, and not through the process of a judicial intervention. It was, therefore, submitted that the OA is devoid of any merit and deserves to be dismissed with costs.
13. The applicants did not file any rejoinder, and the case was argued vehemently, mostly on the basis of page-27 of the paper book of the OA, in which the manner in which the discrepancy or anomaly in IMD had come into being had been explained by the applicants in the following manner:-
PAY SCALES OF ASSTT. CADRE IN IMD Mech.Asstt.
Admin. Asstt.
Scientific Asstt.
III CPC 425-700 425-700 425-700 IV CPC 1400-2300 1400-2300 1400-2300 V CPC 4500-7000 5000-8000 5500-9000 VI CPC 5200-20200 GP-2800 PB-1 9300-34800 GP-4200 PB-2 9300-34800 GP-4200 PB-2
14. Heard. During his arguments, learned counsel for the applicants relied upon the judgment in the case of Union of India & Ors. vs. S.C. Karmakar & Ors. decided by the Honble Delhi High Court in its Civil Appellate Jurisdiction in W.P. (C) No.7475/2007 on 28.09.2007. It is seen that in this particular case, the judgment of the Honble Delhi High Court related to the equivalence between the Office Superintendents in Central Bureau of Investigation (CBI, in short) and the Section Officers (SOs, in short) in the Central Secretariat Service (CSS, in short), and the claim by the OSs of CBI in respect of non-functional pay scale of Rs. 8000-13500 granted to the SOs in CSS, on the ground that SOs working in the CSS earlier were posted as Office Superintendents in the CBI as a routine. It was pointed out that in this case the Honble High Court had observed as follows:-
The Tribunal, in these circumstances, referred to the principle of law laid down in Randhir Singh Vs. Union of India & Ors., AIR 1982 SC 877 and Mewa Singh Kanojia v. AIIMs & Ors., ATJ 1989 (1) 654 are held that the respondents were entitled to the same treatment.
We are of the opinion that the Tribunal rightly observed that the non-functional pay scale (Selection Grade) is given for stagnation in service and has nothing to do with duties being performed. The following observations of the Tribunal would show that the Tribunal was conscious of the fact that the grant of such pay-scales is normally an executive function, but in the instant case, where State itself had disturbed the equilibrium, the court had the right to interfere:-
17. Tinkering with pay scales is not generally a matter in the purview of the courts. This has a domino effect and several equations are disturbed. It also leads to additional expenditure. Therefore, we should be wary of venturing into this field of activity and refrain from disturbing these delicate relationships. However, if the State itself disturbs that clear equations on extraneous considerations, the court can interfere. In the instant case the equation between the OSs of the CBI and SOs of the CSS has been upset by the Government granting to the latter the non-functional pay scales of Rs. 8000-13,500 on the recommendation of a High Level Committee. An expert body like the Pay Commission is not needed to right this wrong. We are confident that in view of the ratio laid down by the Honble Supreme Court in Randhir Singh (supra) and Mewa Singh Kanojia case (Supra), we can step in for righting the wrong. As far as the order in OA No. 102/2005 (Patna Bench) is concerned, we find that the case before the Patna Bench was totally different from the instant case as far as the facts and relief are concerned. For all the foregoing reasons, we do not deem it to be a fit case for interference under Article 226 of the Constitution of India.
This writ petition is dismissed.
Sd/-
A.K.Sikri, J Sd/-
Vipin Sanghi, J October, 10, 2007
15. The learned counsel for the respondents also argued his case vehemently, on the lines as discussed above. We have given our anxious consideration to the facts of this case. It does not seem that the instant case before us is on all fours with the cited case of Union of India & Ors. vs. S.C. Karmakar & Ors. (supra), as we do not find ourselves in a position to hold that the Union of India itself had disturbed clear equations of equivalence of posts on any extraneous considerations, because of which the Courts and Tribunals can interfere in the matter. We also find that the law as laid down in Randhir Singh and Mewa Singh Kanojia (supra) can not also be called to the rescue of the applicants of the present case.
16. The Honble Apex Court has in a catena of cases held that expert bodies like Pay Commissions are the only suitable fora for going into the aspect of pay fixation and equivalence of pay etc., and to weigh the duties, responsibilities and quantum of work assigned to different posts in different departments. Just because two posts in two different departments may carry the same designations of Mechanical Assistant cannot automatically mean that the duties and responsibilities of those posts in those two departments are exactly similar, just because the nomenclature of the designation is the same.
17. The ad-hoc Anomalies Committee had in its meeting held on 11.07.2005 indeed recommended the pay scale of Rs.5500-9000 for Mechanical Assistants (Industrial) in IMD. But from the recommendations of the 6th CPC, and portion of the relevant table as reproduced above, it is seen that even the pay scale of Rs.4500-7000 was ordered to be merged with PB-1 Rs.5200-20200, and placed in PB-1 with Grade Pay of Rs.2800/-. Therefore, we do not find that the applicants of this O.A. have been able to make out a case in which this Tribunal can jump into the fray, and take it upon itself the task of fixation of pay of Mechanical Assistants (Industrial) of IMD, which task can only be performed by the expert bodies like Pay Commission and must have since been performed by the 7th CPC also.
18. The recommendations of the 7th Pay Commission have either already been submitted to the Government, or are about to be submitted to the Government. The respondents are, therefore, directed to await the recommendations made by the 7th CPC in regard to the pay scale of Mechanical Assistants (Industrial) of IMD, and if any type of anomaly, as claimed by the applicants in the present OA, is still noticed, they should forthwith constitute an Anomalies Committee immediately thereafter, and get the issue resolved at the earliest.
19. However, in its present form, and for the present, the OA fails, and is, therefore, rejected, but with directions as above. There shall be no order as to costs.
(Sudhir Kumar) (Dr. K.B. Suresh) Member (A) Member (J) cc.