Central Administrative Tribunal - Delhi
Smt. Anju Jaiswal vs The Chairman on 13 April, 2010
Central Administrative Tribunal Principal Bench TA No.488/2009 MA No. 366/2010 New Delhi, this the 13th day of April, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) 1. Smt. Anju Jaiswal W/o Dr. Shubhag Chand R/o 80, Sadar Apartment, Mayur Vihar, Phase-I, Delhi 110 091. 2. Mrs. Sandeepa W/o Shri Anil Kumar Jain E-18, Ashok Vihar, Phase-I, Delhi 110 052. .. Applicants. (By Advocate : Ms. Jasvinder Kaur) Versus 1. The Chairman National Institute of Public Cooperation and Child Development 5, Shri Institutional Area Hauz Khas, New Delhi 110 016. 2. The Secretary Ministry of Human Resource Development Department of Women & Child Development, New Delhi. .. Respondents. (By Advocate : Shri H.D. Sharma) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
In this TA, there are two Applicants. Applicants No.1 and 2 joined the National Institute of Public Cooperative and Child Development (NIPCCD in short) coming under the control of the Department of Women and Child Development (DWCD) as Computer Operators (CO in short) on 20.7.1989 and 20.12.1989 respectively in the pay scale of Rs.1200-2040. It is the case of the Applicants that they realized that an anomaly had crept in because the Posts of Computer Operators (CO) and Data Entry Operators (DEO) were having same pay scale, while the educational qualifications, job content and selection criteria for both posts were different. They represented to the Director, NIPCCD in their letters requesting upgradation of pay scales of CO to Rs.1600-2660 which is higher than the pay scale of DEO and on par with Data Processing Assistant (DPA). The said representations are at Annexure P-4, P-5, P-6 and P-7. It is also stated that the Fourth Central Pay Commission (4th CPC) recommendations in the matter of pay fixation of DPA and DEO was accepted by the Ministry of Finance, Government of India and the Circular was issued in the OM No.F.7(1)/IC/86(44) dated 11.9.1989 (Annexure-P8). Further, the Applicants case is that the NIPCCD follows pay scales applicable to the Central Government employees, and as the OM dated 11.9.1989 revised the pay scales of Electric Data Processing (EDP) Posts, and the OM did not provide any pay scale for the CO, the pay scale of DPA-Grade A would be applicable for the CO. The argument given by the Applicants to have the pay scale of Rs.1600-2660 was that both CO and DPA-A posts were similar in qualification and the duties and responsibilities. DPA-A being entry grade, it was stated by the Applicants, the CO post was comparable with DPA Grade A and as such the principle of pay parity would be applicable. Revision of pay scale have been carried out in various Ministries and the order dated 10.1.1996 (Annexure-P9) issued by the Cabinet Secretariat was cited as an example. As the Respondents did not consider their request for upgradation of the pay scale of the Applicants to Rs.1600-2660, they moved the Honble High Court of Delhi in Writ Petition No.3871/1996 seeking directions to the Respondents to fix their pay scale w.e.f. 11.9.1989. The Writ was decided on 9.10.1996 with the following directions :-
Present writ petition is disposed of with the following directions:
(i) That the respondent shall consider and finally dispose of the representations of the petitioners including the representation dated 13th February, 1996 (Annexure P-6) and 9th August, 1996 (Annexure P-7) after affording the petitioners an opportunity of being heard within a period of eight weeks from the date of this order decision taken on the representations of the petitioners shall be communicated to the petitioners under acknowledgement; and
(ii) that if after the decision, taken on the representation of the petitioners, in the manner stated above, any of the grievance of the petitioner still survives, the petitioners are given the liberty to approach the appropriate forum for the aforesaid purposes.
2. Since the Respondents did not decide the Applicants representation and did not comply with the Honble High Court direction, the Applicants moved a Contempt Petition in CCP 82/97. At the same time, the Respondents moved CM 422/1998 seeking extension of time to implement the High Court directions. Both CP 82/97 and CM 422/1998 were considered and time was granted upto 22.1.1998 to implement the above directions of the High Court. The Respondents considered the representation of the Applicants and passed a detailed Memorandum dated 22.1.1998 (Annexure-P13) and the competent authority decided to reject the relief requested by the Applicants. Thus, the CCP and CM were ordered to be closed by the Honble High Court in its order dated 23.3.1998 (Annexure-P14). As the Applicants were aggrieved by the Memorandum dated 22.1.1998, they moved the Honble High Court again in WP(C) 2697/1998. Rule was issued on 27.5.1998. It is the case of the Applicant that the Executive Council of NIPCCD met on 30.3.1999 and decided to merge the cadre of CO with DEO, against which the Applicants moved a Civil Miscellaneous Petition No.9543/1999 in the WP(C) 2697/1998 before the High Court where notice was issued to the Respondents. However, the Executive Council of NIPCCD in its meeting held on 30.3.2000 brought in the same subject of merger of CO with DEO which having been considered by the Honble High Court in its order dated 24.4.2000 restrained the NIPCCD not to merge both posts and the restraint has been continuing since then. As permitted by the High Court, the Applicants filed the amended Writ in which the following were the prayers:-
(i) Assign pay scale of Rs.1600-2660 to the petitioners w.e.f.11.9.1989 and refix their emoluments and pay consequential arrears to the petitioners;
(ii) Quash and set aside the impugned order dated 22.1.1998 whereby the respondents have illegally and arbitrarily rejected the grant of pay scale of Rs.1600-2660 to the petitioners w.e.f. 11th September 1989;
(ii.a) The respondents may be directed to maintain separate cadre of COMPUTER OPERATOR in the institute and the same should not be merged with that of Data Entry Operators in view of the fact that the two cadres are distinct and have different eligibility criteria and duties and responsibilities.
(iii) Pass any other relief or reliefs which your Lordships may deem fit and proper in the facts and circumstances of the case including the costs of avoidable present petition.
3. Pursuant to the Government of India Notification dated 1.12.2008, the service disputes of NIPCCD has been entrusted to this Tribunal, and the Honble High Court in its order dated 18.2.2009 transferred the WP(C) No.2697/1998 to this Tribunal which has been registered as TA 488/2009. On 14.12.2009, when the case came up for hearing none appeared on behalf of the Applicants even on the revised call and as such the TA was dismissed for default and non prosecution. The Applicants filed MA 366/2010 for restoration of the TA which was allowed on 6.4.2010, the earlier order dated 14.12.2009 was recalled and the TA was restored to its original position and was taken up for final hearing.
4. Ms. Jasvinder Kaur, the learned Counsel for the Applicants highlighted the background of the case and contended that the qualifications, duties and responsibilities of the CO being superior to the DEO, the merger of both posts would be irrational and discriminatory. That was the main reason for which the Respondents were restrained by the Honble High Court. Ms. Jasvinder Kaur anchored her arguments on the basis of the following contentions. (i) The Applicants are superior in qualifications and duties compared to the DEOs. One of the educational qualifications for the DEO being to have the speed of 10000 keys per hour, which is not prescribed for the CO, merger of CO posts with DEO is not logical. (ii) The Applicants discharge the duties and functions which are same/similar being discharged by the DPA Grade A, (iii) Since qualification for recruitment and duties and responsibilities of both Computer Operators and Data Processing Assistants Grade A are same or similar, it was argued that the principle of pay parity and equal pay for equal work would be applicable. (iv) The Computer Operators in other Departments of the Government of India working on the post of DPA have already got the pay scale of Rs.1600-2660 and as such the same needs to be extended to the Applicants with effect from 11.09.1989, the date from which the pay scale under 4th Pay Commission recommendations was implemented in the Govt. of India. She placed her reliance on the judgment of this Tribunal in a batch of OAs, namely, OA No.1299/2006, OA No.1301/2006 OA No.1363/2006 decided together on 29.11.2006 and judgment of the Honble High Court of Delhi in batch of Writ Petitions decided on 11.12.2009 (WP (C) No.5777/2007, WP (C) 5789/2007 and WP (C) 5812/2007). She submits that the judgment of the Tribunal as relied upon covers the case of the Applicants and, therefore, she urged that the Tribunal should direct the respondents to extend the pay scale of Rs.1600-2660/- to the Applicants w.e.f. 11.09.1989.
5. On the other hand, learned counsel for Respondents Shri H.D. Sharma very strongly opposed the contentions raised by Ms. Jasvinder Kaur. He submitted that the Applicants having the qualification for a different post would not entitle them to get the pay scale of that post. On the contrary, he argues that the Applicants were selected and were issued appointment letter only for the post of Computer Operator, which they joined and as per the said order, the pay scale of the Computer Operator was Rs.1200-2040. The Applicants may be highly qualified but having accepted the post, they are only entitled to get the pay scale meant for the CO post. He refuted the contention that the Applicants job and functional responsibilities were comparatively same or similar with that of the Data Processing Assistant Grade A. He argues that contention of the Applicants counsel would not be right interpretation since the entry grade for Data Process Assistant would have Diploma or Certificate in computer applications as one of the essential educational qualifications which had not been prescribed for CO. On the other hand, Shri Sharma submits that qualification for the post of Computer Operator does not prescribe Diploma or Certificate in computer applications. He also drew our attention to para 15 of the Counter Affidavit filed by the Respondents to indicate that the qualification and experience of the Computer Operators and those of Date Entry Operators are almost same or similar. He hastened to add that in the changed and improved technological environment for electronic data processing and analysis functions and jobs of the DEO and the CO being same, the Respondents desired to rationalize various electronic data processing posts by merging these two posts (CO and DEO) and, therefore, he pleaded that the Tribunal should vacate the stay granted by the Honble High Court and authorize NIPCCD to implement its Executive Council Resolution in the subject. With regard to the contention raised by Ms. Jasvinder Kaur that the qualification of DEO prescribes the minimum speed of 10000 keys per hour, he submitted that Computer Operators and Data Entry Operators would always be required to key data for computerization which were primary and essential responsibility in the operation of the computers. That would make no difference for merging of both the posts of CO and DEO. He also submitted that OM dated 11.09.1989 issued by the Govt. of India in the Ministry of Finance, no pay scale was prescribed for the post of Computer Operator. In this regard, he drew our attention to the Rules governing the NIPCCD to state that the Rules of the NIPCCD would apply in all cases where such posts did not exist in the Government and as such the Recruitment Rules for Computer Operator was applicable for the Applicants. He also contended that with regard to merger of the post of Computer Operator with Date Entry Operator, the Institute constituted a Group of Officers to review the representations of the electronic data processing staff, as per which the expert group observed that the job responsibilities of both CO and DEO being same and the qualification being more or less same, the committee recommended that the posts of CO should get merged with that of DEO. When such a process was going on, the Applicants have moved the Honble High Court of Delhi and restrained the Respondents, which has impeded the rationalization process undertaken by the Respondents. He also laid his reliance on the judgment of Honble Supreme Court in the case of State of Madhya Pradesh and Others Vs. Ramesh Chandra Bajpai (2009-13-SCC -635) to submit that the doctrine of equal pay for equal work would only be invoked when the employees of two posts are wholly and fully similarly situated. He also placed his reliance on the decision of this Tribunal in TA No.1088/2009 in the case of R.S. Bisht & Ors. Vs. Delhi State Industrial & Infrastructure Development Corporation. Shri Sharma, therefore, submitted that the Applicants were not similarly situated as the DPA Group A and thus were not entitled to the DPA Group A pay scale.
6. Having heard the rival contentions, with their assistance we also perused the pleadings. We have given our utmost consideration to the contentions of both parties. In the background of the above facts, we identify the following two main issues raised by the Applicants for our consideration and determination :-
(i) Can the Applicants as Computer Operators be compared with DPA-A and are entitled to get pay scale of Rs.1600-2660
(ii) Is the merger of Computer Operator posts with the DEO-B sustainable in the eyes of law?
7. Before we determine the above two issues, we encapsulate here the following admitted and undisputed facts :-
* Both Applicants were appointed to the post of Computer Operators in 1989 in the scale of pay of Rs.1200-2040.
* There exists Recruitment Rules (RR) for the post of Computer Operator approved by the Competent Authority vide their letter dated 14.12.1988. As per the column 8 of the RR, educational and other qualifications required for direct recruitment has been stipulated to be : Essential: Graduate with 3 years operational experience on micro computer Desirable : Knowledge of micro-computer application. * The Ministry of Finance in its OM dated 11.09.1989 issued detailed guidelines on the rationalization of pay scale of Electronic Data Processing Posts in the Government of India, as per which two broad categories of posts were delineated viz (i) Data Entry Operator (DEO) in Grade, A, B, C,D and E; and (2) Data Processing/Programming Staff with 4 sub classifications.
* The OM dated 11.09.1989 does not have computer operator as one of the posts in either of the two categories.
8.1 We now take up the 1st issue for adjudication from the points of law and facts. The issue is, can the Applicants as Computer Operators be compared with Data Processing Assistants-Grade A (DPA-A) and are they entitled to get DPA-A pay scale of Rs.1600-2660? This issue is intertwined with; (a) the Principle of equal pay for equal work and pay parity and (b) the power of the Tribunal to interfere and direct the Respondent to decide the stepping up of the pay scales. We examine the well settled legal position in the subject.
8.2 Both the Learned Counsels for Applicants posed their arguments for and against the settlement of anomalies for Applicants. The issue of equal pay for equal work was argued quoting catena of Apex Court decisions. We have considered those judgments and note that the case laws relied upon by the Applicant are distinguishable and not applicable for this OA. We rely on the judgments of Honble Supreme Court that judiciary must exercise restraints in encroaching upon the executive domain more specifically pay scale fixation and adjudication of pay anomalies. We would like to quote the decision of the Apex Court in Union of India and others Versus Hiranmay Sen and others [(2008) 1 SCC 630], which thus reads as under : -
This Court in S. C. Chandra v. State of Jharkhand has held that the Court cannot fix pay scales as that is the purely executive function. In the aforesaid decision one of us (Markandey Katju, J.) has discussed in detail the principle of equal pay for equal work and has observed that the said principle has been considerably watered down in recent decisions of this Court, and it is not applied unless there is a complete and wholesale identity between the two groups, and even there the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting the higher pay scale. 8.3. In this regard, decisions of the Honble Supreme Court clearly directs that the Courts shall not interfere and direct the Government to fix the pay and emoluments. 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 it 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. 8.4 In respect of pay parity claimed by the Applicants, it is found that educational qualifications and job responsibilities of DPA-A is superior to the CO. The classification provided in the OM dated 11.09.1989, the Applicants are closer to DEO-B in respect of their work responsibilities than the DPA-A. In this regard, we are guided by the ratio laid down by Honble Apex Court in the case of State of UP Versus I. P. Chaurasia [1989-1-SCC-121] and National Federation of State NFC (Physical Education) Teachers Associations and Others Versus Union of India [AIR 1993-SC-369]. The Government have broadly classified the Electronic Data Processing staff into two classes/groups viz. DEO and DPA. The Applicants claim to get parity with DPA-A (this is entry grade) whereas Respondents find through an expert group that the Applicants can be merged with DEO-B (this is also partly entry grade). Different classification in the two groups is based on educational qualification. In this regard, we would like to rely on the judgment of Honble Apex Court, wherein, it was held that educational qualification could be a valid basis for categorizing employees. In this context, we rely on the Apex court judgment in State of West Bengal Versus T. K. Ghosh [2005-10-SCC-339] and find that the Respondents are right in their decision to have appointed the Applicants in a class called Computer Operators as per the RR and considered them to be merged in DEO class than in DPA group.
8.5 Admittedly, the Applicants were appointed as CO as per the NIPCCD Recruitment Rules for the said post and they are getting pay scale as prescribed in the RR and offered to them in the appointment order. They, having accepted the pay scale and joined the post, are claiming stepping up of the pay scale from Rs.1200-2040 to Rs.1600-2660. Such a stepping up can generally be granted only if there is provision in the Rules in that behalf and such a claim can only be made only on the basis of a legal right and not on the presumptive motion of equity or equality, not connected with the relevant Rules. In the present OA, the RRs do not provide any such Rules and Provisions for stepping up. The Applicants have taken the plea of pay parity and Principle of equal pay for equal work, comparing themselves with DPA. In the later part of this order, we have compiled the educational qualification of CO, DEO-B and DPA-A and noted that the Applicants are closer to DEO-B than to DPA-A. 8.6 In view of the legal position in the subject, the Rules position and on facts of the case, we agree with the contentions and averments of the Respondents that the Applicants qualification, functional domain and the job responsibilities are not comparable with those of the DPA-A and as such we come to the considered conclusion that they are not entitled to their claim for the upgradation of their pay scale from Rs.1200-2040 to Rs.1600-2660.
9.1 The Second issue now taken up for our consideration is-Is merger of Computer Operator posts with the DEO-B legally sustainable?
9.2 Two Applicants seeking re-fixation of pay to higher scale needs comparative job analysis and evaluation. We find from the averments of the Respondents that the Applicants being CO are closer to the job and functions of DEO-B and the same has been recommended by a group of experts of NIPCCD. It is trite that executives should consider the claims and counter claims while taking decision in a complex matter of pay anomalies and pay fixation. The Honble Supreme Court in Secretary, Finance Department and others Versus West Bengal Registration Service Association and others [1993 Supp (1) SCC 153] has laid down important factors for job evaluation and the Court will not enter upon the task of job evaluation, which reads as under :-
12. We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant date and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and charge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. 9.3 The Applicants compare their qualifications with those of the DPA-A to seek pay scale upgradation but the expert committee of NIPCCD has recommended the merger of CO with DEO-B but the Applicants resist such a merger. In the following Table, we capture the prescribed qualifications and experience of 3 posts :-
Sl. Posts Qualifications and Experience
No.
1. Computer Operator (CO) Essential : Graduate with three years
Operational experience as Micro
Computer.
Desirable : Knowledge of Micro Computer
Application.
2. Data Entry Operators Essential : Graduate with certificate in Data
Grade-B (DEO-B) Entry with a minimum speed of
10,000 keys per hour.
Desirable : Knowledge of Micro computer
Application.
3. Data Processing Assistant(i) Degree of a recognized university with
Grade A (DPA-A) Science, Mathematics, Economics,
Commerce, Statistics (for other EDP relevant areas as decided by the Organisation) or equivalent may be specified in the rules by individual Departments.
(ii) Diploma/Certificate in Computer Application from a recognized institution, or knowledge of programming system operators and systems analysis to be judged through suitable tests.
The Table above clearly brings out that the education qualification and experience of 3 posts are different. It is the executive expert body which can compare posts as per various factors and find out whether merger of CO with DEO-B is feasible. NIPCCD has precisely done that. It is appropriate for us to take the extract of the Respondents written submission which is as follows:-
Consequent upon acceptance of the recommendations of the 4th Pay Commission the respondent Institute adopted the recommended revised pay scales in respect of various categories of staff working in the Institute. Subsequently the Department of Expenditure (Implementation Cell) Ministry of Finance vide its O.M. dated 11.9.1989 issued orders regarding rationalization of pay scales of Electronic Data Processing (EDP) staff. Both the petitioners working as Computer Operators in the scale of Rs.1200-2040 by making reference to this O.M. made representations to revise their pay upwards to Rs.1600-2660. Similarly, certain other categories of staff also made representations for upward revision of their scales. In support of their claims they made reference to various office memoranda issued by Government of India on the subject. The Executive Council of the respondent Institute was apprised of these representations and the Council in its meeting held on 16.12.1997 appointed a Group of Officers. The educational/professional qualifications prescribed for Computer Operator in respondent Institute is Graduate with 3 years operational experience in micro-computer. There is no requirement of a recognized diploma/certificate in computer applications. The post of Computer Operator is much lower than that of the post of a Data Processing Assistant. It is the Group of Officers which recommended that the job responsibilities of the post of Computer Operator in the respondent Institute are similar to those of Data Entry Operator in Group B in the Government of India. Keeping in view the qualifications required for these two categories of posts and the job responsibilities performed by Computer Operator in the respondent Institute, the group recommended that the post of Computer Operator be designated as Data Entry Operator making it a common cadre of Data Entry Operator without affecting the inter se seniority of the existing incumbents. The Group also recommended the revision of pay scale of the post of Data Entry Operator to Rs.1350-2200 from Rs.1200-2040. Final decision on such recommendation is awaited. 9.4 In view of the above, we find that the expert body of NIPCCD has submitted its recommendation for merger of CO posts with DEO-B posts, which has been approved by the Executive Council of NIPCCD. But the same could not be implemented as the Honble High Court restrained the Respondents. We note that the CO post is in the pay scale of Rs.1200-2040 and the DEO-B post carries the scale of pay of Rs.1350-2200. Surely, if the merger takes place, the Applicants will, to that extent get the pay scale upgradation. Considering the legal position in the subject and facts of the case, we would like to observe that the merger of the posts of Computer Operators i.e. the posts presently occupied by the Applicants, with the posts of Data Entry Operator-Grade-B comes well within the domain of Executive Council of NIPCCD and is legally sustainable. However, the Respondents are to give opportunity to those who are expected to be affected before finalizing such merger. Consequential exercise like inter se seniority need also to be carried out in a transparent manner as per law.
10. Considering the above facts and circumstances of the case, and taking into account the Rules position and settled legal position in the subject, we come to the considered finding that the Applicants have not been able to establish their case. Resultantly, the TA being bereft of merits is dismissed with our findings on the 2 issues, and the stay granted earlier by the Honble High Court is vacated. In view of the typical nature of the case, we do not pass any order as to cost.
(Dr. Ramesh Chandra Panda) (Mrs. Meera Chhibber) Member (A) Member (J) /pj/