Central Administrative Tribunal - Allahabad
Unknown vs Union Of India on 29 November, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
*****
(THIS THE 29 DAY OF October,2010)
Honble Dr.K.B.S. Rajan, Member (J)
Honble Mr. S. N. Shukla, Member (A)
Original Application No.21 of 2002
Along with
Original Application No.22 of 2002
Deepak Kaul son of late Shri G.N. Kaul Resident of 3/15/4, Prem Nagar, District Dehradun, Presently working as Draftsman, in the Central Soil and Water Conservation Research and Training Institute, 218, Kaulagarh Road, Dehradun (Uttaranchal).
Applicant
Present for Applicant: Shri A.K.Mishra
Shri Rakesh Pandey
Sri P. Srivastava.
Versus
1. Union of India, through the Secretary, Agriculture, New Delhi.
2. Indian Council of Agriculture Research through its Secretry Krishi Bhawan, New Delhi.
3. Director General, Indian Council of Agriculture Research, Krishi Bhawan, New Delhi.
4. Director, Central Soil and Water Conservation Research and Training Institute, 218 Kaulagarh Road, Dehradun (Uttranchal).
5. Administrative Officer, Central Soil and Water Conservation, Research and Training Institute 218, Kaulagarh Road, Dehradun (Uttranchal).
Respondents
Present for Respondents : Shri B. B. Sirohi, Advocate
O R D E R
(Delivered by Hon. Dr. K.B.S. Rajan, Member-J) At the very outset, we have to mention that this OA 21 of 2002 and OA No. 22 of 2002, were decided in the absence of the applicants counsel on 26th May 2009 and on an application filed by the applicants counsel, the earlier orders were recalled and the O.As. restored to their original position. Though, an order to the effect has been found in OA No. 21 of 2002, no such docket order is seen in OA 22/2002. However, as the application for recall is a composite application in respect of the two O.As. and as the OA 21 of 2002 was earlier disposed of on the strength of the order in the other OA, it was submitted that the recall applies to both the cases. There has been no serious objection from the side of the respondents in this regard. Hence, the two OAs are being considered afresh in this order.
2. Facts of the case with terse sufficiency: The applicant is serving in the Central Soil and Water Conservation Research and Training Institute coming under the Administrative Control of Indian Council of Agricultural Research, New Delhi. He was appointed as T-I Draftsman in the pay scale of 975-1540 as early as in 1989. The qualifications for the said post as per the advertisement published by the respondents are:-
1. Matriculate or its equivalent
2. Diploma or Certificate Course in Draftsmanship of a recognized Institute.
The applicant joined the post and was performing the duties of a Draftsman.
3. In all the subsequent advertisements for the said post of Draftsman, all were termed as T-II Draftsmen and the pay scale was Rs.1200-2040. The qualifications required were as under:-
Essential: Matriculate or its equivalent
with civil Draughtsman certificate.
Desirable: i. Diploma in Civil/Agri. Engg.
ii Two years experience in the
relevant field for Diploma Holders
or
Essential 1) Atleast one years civil Draftsman
Certificate or Matriculation with
Five years experience of civil Draughtsman in reputed Organization
2) Higher Certificate/Diploma in Civil
Civil draftsman
Two years experience of Civil Draughtsman in reputed Organization
Or
Essential 1 post (Unreserved) at Cochin
At lest One year Certificate in the
Trade of Draughtsman (Mechanical)
Or
Matriculate with 5 years experience of
Working in the respective field, viz in
the trade Draughtsman (Mechanical)
preferable in the Boat Building Yard.
Desirable 1. Higher Certificate/Diploma in the
Trade Draughtsman (Mechanical)
2. Two years experience as Draughtsman (Mechanical) preferably
in a Boat Building yard.
4. In so far as functional responsibilities are concerned the applicant has filed Annexure-V to Annexure X wherein instructions were given by the Higher Officers to the applicant as well as other T-2 Draftsman to perform identical duties.
5. Earlier the applicant moved the Tribunal by filing OA No.920/97 against the order dated 19-10-1996 (Annexure A-13) inter-alia for directions to the respondents to give salary in the pay scale of Rs.1200-2040. This was disposed of by order dated 13.06.2001 the operative portion of which is as under:-
Since the applicants have raised the issue of parity of pay scale in the various Institutes of ICAR and the applicants had made an appeal through proper channel to the Director general on 1.2.1997, which does not appear to have been forwarded to the Director General of ICAR, New Delhi by the Director of the Institute, we consider it appropriate in the interest of justice to direct the respondent no.3 to decide the appeal of the applicants within a period of three months from the date of communication of this order by the applicants with copies of their appeals.
6. The applicants have moved a representation vide Annexure 5 letter dated 16.8.2001. The respondents vide their letter dated 21.1.2002 (Annexure A-16) rejected the case of the applicant. The applicants have, therefore, come up before the Tribunal again seeking the following relief:-
(i) to set aside the order passed by the respondent no.5 dated 21.1.2002 (Annexure-16) and the order dated 19.10.96 (Annexure-13) and issue suitable direction to the respondents to fix the salary of the applicant in Draftsman T-2 grade with effect from the date of his appointment i.e.23.3.1989 and to grant the applicant all the consequential benefits of service including fixation of seniority, arrears of salary etc.
(ii) issue such other direction as this Honble Tribunal may deem fit and proper;
(iii) Award costs to the applicant.
7. Respondents have contested the O.A. According to them the post of Draftsman T-I in the pay scale of Rs.975-1540 was filled up as per Rule 8.1. of Technical service Rules. As regards subsequent selection, the designation was T-2 Draftsman with certain desirable qualifications and as such the pay scale was higher than that of T-I Draftsman. As regards their assignment of functional responsibilities vide paragraph 4.18 of the OA, the respondents have stated that the averments made in the said paragraph of the OA are matter of records. The applicant has filed Rejoinder affidavit refuting the contentions of the respondents which do not go in tandem with the averments made in the OA and reiterated his averments and contentions as is the OA.
8. Counsel for the applicants argued as under:-
(a)In the respondents organization, in technical service Rules, there are three categories each having three intermediate grades in between called T-1 in the scale of Rs 260 430; T-2 in the scale of Rs 330 560 and T-3 in the scale of Rs 425 700/-. Vide para 4.1 of the Rules, the post of Tracer and Draftsmen fall under Grade III (Workshop staff in the Engineering Workshop).
(b) In all the other Departments, the post of Tracer is lower in rank to the post of Draftsman, and in some the former is the feeder grade to the latter.
(c) In the Institute no draftsman has been appointed in the T-I Grade all invariably all the draftsmen appointed subsequent to the applicant have been placed only in T-2.
(d) The designation assigned to the applicant is also Draftsman but right from the beginning he has been placed in T-1 which is lower in grade compared to T-2. But there is no T-1 draftsman though there is one post of T-1 Tracer, but the applicants have been appointed as Draftsmen only.
(e) The qualifications prescribed for the post of Draftsman both at the time the applicant had been selected and in the subsequent selection have been the same.
(f) The functional responsibilities have all been identical and invariably, when orders are passed by the higher authorities, the names of the applicant as well as others who have been appointed subsequently but in T-2 appear together. In other words, they are asked to perform identical nature of duties.
(g) When qualifications and functional responsibilities are exactly identical and the nomenclature is also one and the same, if the pay scale is different, the same offends the sanctity of the provisions of Art. 14 and 16 of the Constitution of India.
9. Counsel for the respondents submitted that it cannot be stated that the qualifications are one and the same. In respect of appointment to the post of Draftsman in the subsequent batches, the qualifications included desirable qualifications which are conspicuously missing in the initial selection.
10. Arguments were heard and documents perused. The applicant applied for the post of T-I Draftsman in the scale of Rs 975 1540 and the qualifications prescribed, vide Annexure A-1 are -
(i) Matriculation or its equivalent qualification.
(ii) Diploma or certificate course in Draftsmanship of a recognized institute.
11. Vide Annexure III Advertisement No. 2/89, the post of draftsman is in the category of T-2 and the pay scale is Rs 1200 - 2040 and the qualifications mentioned are as under:-
Essential: Matriculate or its equivalent qualification with civil draftsman certificate.
Desirable:
i) Diploma in Civil/Agri. Engg.
ii) Two years experience in the relevant field for diploma holders.
12. Vide Annexure A-IV, in the next circular also, the post has been described as T-2, with the pay scale of Rs 1200 2040 and the qualifications are as under:-
Essential: At least one years Civil Draftsman Certificate or matriculation with five years experience of Civil Draftsman in reputed Organization.
Desirable: Higher Certificate/Diploma in Civil Draftsman.
Two years experience in Civil Draftsman in reputed organization.
13. The applicant has annexed certain orders/materials to substantiate that whenever work used to be allotted, without any distinction as T-1 or T-2, both the applicants as well as some of the other Draftsman (T-2) have been asked to perform one and the same duties. Annexure A-VI to A-X refer.
14. The respondents have identified the posts not merely on usual designation (draftsman), but associate the same with some category. In this regard Rule 4.3 of the Rules vide annexure 1 to the counter refers and the same reads as under:-
4.3 All technical posts under the Council with different designations will be known by their grade numbers. However, for the purpose of identification of duties performed by different functionaries, the grades of the persons will be appropriately distinguished to reflect the duties attached to the posts. For example a post of Laboratory Technician in Grade T-2 may be denoted as T-2 (Lab. Technician).
15. Thus, by virtue of the above, the applicants in the two O.As are known as T-1 Draftsman, while the rest of the Draftsmen, appointed subsequently are called T-2 Draftsman and they are placed in the higher pay scale.
16. However, the applicants have added Annexure XI which gives the full details of the staff pattern and in so far as Draftsman is concerned, there is only one grade i.e. T-2 draftsman and thus counsel for the applicant contends that right from day one, the applicants have been functioning as Draftsman, with identical qualifications as T-2 Draftsman and have been entrusted with identical functional responsibilities without any discrimination of having been appointed as T-1 draftsman and T-2 draftsman and as such, they are entitled to higher pay scale of Rs 1200 2040.
17. The matter now rests with the issue as to whether the post of T-1 Draftsman and T-2 Draftsman should be equated as at par with each other, both in respect of qualification requirements as also for pay scales and functional responsibilities. However, before coming to a decision in this matter, certain vital legal aspects are to be considered in respect of equation of posts. The Apex Court has considered the same in a number of cases and some of them are as under :-
(a) As to powers of the High Court under Art. 226 to deal with equation of posts:
(i) In Prabhat Kiran Maithani v. Union of India, (1977) 2 SCC 365, the apex court has observed as under:-
3. The learned Solicitor General has invited our attention to the case of Union of India v. G.R. Prabhavalkar, where this Court held that equation of posts is not a duty which the High Court was competent to carry out in proceedings under Article 226. We do not think that we have wider powers or that we can do with greater facility what a High Court cannot when exercising its writ issuing jurisdiction.
(ii) In Union of India vs G.R. Prabhavalkar (1973) 4 SCC 183, referred to in the above two judgments, the Apex Court has stated as under:-
If the Central Government has acted according to the provisions of the Act then the Court cannot go into the merits of equation of posts which is solely within the province of the Central Government unless the decision is malafide or arrived at on totally irrelevant and extraneous considerations. The decision cannot be interfered with on the ground that there will be some hardship caused to the officers of one particular region or the other
(b) In so far as comparison of functional responsibilities, the Apex Court has held that mere sensory similarities in jobs are not decisive of equation of post. In comparing two jobs, disparity in skill and mental and physical strain should be considered (see Woolcombers of India ltd vs Workers Union (1974) 3 SCC 318
(c) In a more elaborated manner, in Sub-Inspector Rooplal v. Lt. Governor, (2000) 1 SCC 644, the Apex Court has held as under:-
Equivalency of two posts is not judged by the sole fact of equal pay. While determining the equation of two posts many factors other than pay will have to be taken into consideration, like the nature of duties, responsibilities, minimum qualification etc. It is so held by this Court as far back as in the year 1968 in the case of Union of India v. P.K. Roy. In the said judgment, this Court accepted the factors laid down by the Committee of Chief Secretaries which was constituted for settling the disputes regarding equation of posts arising out of the States Reorganization Act, 1956. These four factors are: (i) the nature and duties of a post; (ii) the responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged; (iii) the minimum qualifications, if any, prescribed for recruitment to the post; and (iv) the salary of the post. It is seen that the salary of a post for the purpose of finding out the equivalency of posts is the last of the criteria. If the earlier three criteria mentioned above are fulfilled then the fact that the salaries of the two posts are different would not in any way make the post not equivalent.
18. In the instant case, what is to be seen is as to whether there is a requirement of equating T-I Draftsman (the post held by the applicant) and T-II Draftsman.
19. The details of staff position in the respondents organization have been given in Annexure XI (The Eight Plan 1992-97) and it talks only of T-2 Draftsman and not T-1 Draftsman. Of course, there is one post of T-1 Tracer. However, the appointment of the applicant is not Tracer nor is it anybodys case that it is the post of T-1 Draftsman that has undergone a change in its appellation. Thus, there is only one category of Draftsman under T-2 and the same carries the pay scale of Rs 1200-2040 and the qualification for the same is, as stated above, as under:-
Essential: Matriculate or its equivalent qualification with civil draftsman certificate.
Desirable:
i) Diploma in Civil/Agri. Engg.
ii) Two years experience in the relevant field for diploma holders.
20. The essential qualification as prescribed above is the same as the one that was prescribed for T-1 Draftsman (The word civil added in the case of T-2 draftsman does not make any change since the Draftsman simpliciter is invariably of civil and if there be any draftsman for other category, the same only has to be spelt out.) The counsel for the respondents submitted that the desirable qualifications make the change. We fail to appreciate. Desirable qualification cannot take the place of essential qualifications. Assuming a case wherein of those who had applied, there is none with the desirable qualification; would it mean that there wont be any selection? The answer is in negative. Thus, in so far as qualifications are concerned, there appears no difference at all between T-1 and T-2 Draftsman.
21. Coming to functional responsibilities, none of the parties could produce the charter of duties in respect of the two categories of Draftsmen. Nevertheless, some of the orders passed by the higher authorities give a fair clue that there is no difference in the functional responsibilities of T-1 and T-2 Draftsmen. Annexures A-V, A-VI and A-VII refer.
22. The above two factors, i.e. qualifications and functional responsibilities are sufficient enough to come to a conclusion whether the two posts are identical and the Tribunal could come to certain decision in this regard. Nevertheless, since the Apex Court has categorically specified that equation of posts is a matter within the domain of the employer, it is only appropriate that a study is organized by a committee of officers who shall analyze the functional responsibilities of both T-1 Draftsman and T-2 Draftsman in the Respondents organization and ascertain whether these two should be treated at par with each other and identical pay scale is made available to the applicants. So far as educational qualifications are concerned our finding as stated above (viz., both of them are one and the same, desirable qualification in respect of T-2 Draftsman notwithstanding) shall be kept in view and thus it is only with reference to functional responsibilities that the committee of officers should go in for analysis. (In fact, in so far as functional responsibilities, there has been no rebuttal to what the applicants have stated in para 4.18; yet, since the counter would have been prepared without undertaking a scientific method of comparison of the functional responsibilities, it is appropriate that the same is now done by a committee).
23. In view of the above, the O.As. are disposed of, with a direction to the respondents to constitute a committee preferably of three members, chaired by an officer at the level of Director and the committee shall consider the functional responsibilities of the applicants and T-2 Draftsman in the respondents organization and furnish their finding as to whether the responsibilities are akin to each other. The Director General, ICAR being the administrative head shall, on receipt of finding of the committee decides in respect of grant of higher pay scale to the applicants. If there be full justification for grant of higher pay scale to the applicants it shall be from the date of filing of this O.A. (May, 2002) or from that date from which the functional responsibilities are found to be identical.
24. Time calendared for completion of the above drill is as under :-
(a) Formation of committee one month from the date of communication of this order
(b) Deliberations of the committee and finding thereof two months from the date of formation of the committee
(c) Decision by Director General, ICAR on the basis of the finding of the committee one month
(d) If the decision is to afford higher pay scale to the applicants, implementation of the same three months thereafter.
25. Costs easy.
Member (A) Member (J)
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