Central Administrative Tribunal - Delhi
Major (Retd.) P.S. Karki vs Union Of India Through on 7 August, 2015
Central Administrative Tribunal Principal Bench: New Delhi OA No.433/2013 OA No. 486/2013 OA No.173/2012 Reserved on: 16.04.2015 Pronounced on: 07.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No.433/2013 Major (Retd.) P.S. Karki, Dy. CIOA Office of DG SSB, Ministry of Home Affairs, Block V (East), R.K. Puram, New Delhi 110 066. ...Applicant (By Advocate: Sh. Padma Kumar S.) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi. 3. Director General, SSB East Block V, R.K. Puram, New Delhi 110 066. Respondents (By Advocate: Sh. Rajiv Kumar) OA No.486/2013 1. Ajitha Kumar 276, Sec. 3, R.K. Puram, New Delhi- 22. 2. Hrudanda Patra D-337, Sarojini Nagar, New Delhi 23. 3. Subhash Chandra Sharma C-166, Nanakpura, New Delhi. 4. Ashok Kumar RZG-447/A-2, Raj Nagar, Palam Colony, New Delhi. 5. Dinesh Kumar G-21, Nanakpura, New Delhi. 6. R.S. Chauhan, 531, Sec. 3, R.K. Puram, New Delhi 22. 7. Balwant Singh H-412, Sarojini Nagar, New Delhi 23. 8. Ajitha Kumar R. D-323, Sarojini Market, New Delhi-23. Applicants (By Advocate: Shri Sh. Padma Kumar S.) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. The Director General, Sashastra Seema Bal, East Block, R.K. Puram, New Delhi. 3. The Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi-1. Respondents (By Advocate: Sh. Sh. Rajesh Katyal) OA No.173/2012 1. R.S.Chauhan Qtrs No.531, Sec.3, R.K. Puram, New Delhi 110 022. 2. Sant Ram, Sector 6, H.No.662, Bahadurgarh, Haryana Pin-124 507. 3. P.K. Thakur H.No.73, Munirka Kunj, Deempur Ext., Najafgarh. 4. Dhan Singh, R/21/38, Mahavir Enclave, Palam, New Delhi. 5. Mohan Lal Sharma, Vill. Kherka, Post Akbarpur Tehsil & Distt. Alwar, Rajasthan. Applicants (By Advocate: Sh. Padma Kumar S.) Versus 1. Union of India through Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Secretary, Department of Expenditure, Ministry of Finance, North Block, New Delhi. 3. Director General, SSB East Block V, R.K. Puram, New Delhi 110 066. Respondents (By Advocate: Shri Tanvir Ahmed Ansari) O R D E R By Dr. B. K. Sinha, Member (A):
All these three Original Applications filed by the applicants under Section 19 of the Administrative Tribunals Act, 1985 have been heard together and are being disposed of by this common order as the facts and the law points involved in these cases happen to be identical and similar, except change in their designations and pay scales.
2. The applicants in all the OAs have prayed for the following relief(s):
Sl.
No. OA No.433/2013 OA No.486/2013 OA No.173/2012 a.
b.
c.
d.
Quash and set aside the Order dated 18.05.2012 (Annexure A-1).
Direct the respondents to consider the case of the applicant as per the grievances raised by the applicant in the representation dated 23.04.2012 and grant the Applicant the Grade Pay of Rs.7600/- which is immediately below the grade pay of Rs.8700 as has been granted to the CIOA, with all consequential benefits including arrears of pay from 01.01.2006.
In the alternative a direction may be passed to grant the applicant the pay scale as applicable to the post of Major from the date of initial joining in SSB as per the conditions of service.
Any other direction which this Honble Tribunal may be pleased to pass under the facts and circumstances of the case.
a. Quash and set aside the impugned orders to the extent the applicants as Inspector have not been granted the Grade Pay of Rs. 4800/-.
b. Direction to the respondents to grant the Grade Pay of Rs.4800/- from 1.1.2006 with all consequential benefits, with arrears of pay and interest thereon c. any other direction which this Honble Tribunal may be pleased pass under the facts and circumstances of the case.
(a) Call for the records related to the examination of the revision of pay scales of Senior Inspectors.
(b) Quash and set aside the order dated 15.03.2011 and 09.05.2011 [Annexure A-1 (colly.)]
(c) Direct the respondents to grant the applicants the Grade Pay of Rs.5400/- at par with the Senior Field Officers and Sub Area Organizers with all consequential benefits, from their date of promotion or 0101.2006 whichever is later.
(d) Any other direction which this Honble Tribunal may be pleased to pass under the facts and circumstances of the case.
3. For adjudication of the controversy involved in all these cases, we take into consideration the facts of OA No.433/2013 as the lead case. However, important facts of other two cases will also be considered at the appropriate place.
4. The facts of the case in OA No. 433/2013 are that the applicant was working as Major in the Indian Army in Corps of Ordinance. He was appointed as DCIOA in the pay scale of Rs.2200-4000 (pre-revised) on re-employment basis vide Order dated 26.10.1998 for a period of two years on probation w.e.f. 20.10.1998. The applicant successfully completed the period of probation and his services were regularized vide order dated 17.01.2001. The Establishment of Inspectorate of Armaments under the Directorate General (Security) had been raised in the year 1969 under the sanction from the President for the purpose of supervision and coordination of inspection work of material including arms, ammunition and vehicles of Sashastra Seema Bal (now designated), Aviation Research Centre, and Special Frontier Force, communicated vide letter dated 05.07.1991. As per the above Sanction, the then top post of Inspector (now designated as Chief Inspector of Armament (CIOA) was to be manned by an officer of the rank of Lt. Colonel in the Army with the scale of pay as in the Army, whereas the post of the then Deputy Inspector (now designated as Deputy Chief Inspector of Armament (DCIO) was to be manned by an officer of the rank of Major in the Army with the scale of pay as in the Army. In pursuance to the presidential sanction, the pay scale of CIOA was prescribed at Rs.900-1250 while that of the DCIO at Rs.350-950 vide order dated 05.07.1991. These were revised in the wake of 3rd Central Pay Commission (CPC) at Rs.1100-1600 for CIOA and Rs.700-1300 for DCIOA. However, this was given as simple replacement pay scale without having examined the existing conditions of service and equivalence of the post with that of Lt. Colonel and Major in the Army respectively. The said pattern was repeated following the 4th CPC report when the CIOA was granted the scale of Rs.3000-4500 and DCIOA was given the scale of Rs.2200-4000/-. The case of the applicant is that in the Indian Army, the post of Major constitutes a feeder cadre to that of Lt. Colonel. The grievance of the applicant is that for inexplicable reasons, CIOA has been granted the scale of the post of Lt. Colonel while equivalence has not been maintained in the case of DCIOA with that of Major. The post of Inspector (Armament) was upgraded from Rs.3000-4500 to Rs.4100-5300 vide order dated 23.04.1993 but the post of DCIOA was left un-revised. Thus, the order of 1993 disturbed the pattern of pay scale of CIOA being the immediate higher pay scale in the structure of pay while the DCIOA continued in the scale of Rs.2200-4000/-. In the 5th CPC both these posts were given simply replacement scale i.e. CIOA was given Rs.14300-18300 while the DCIOA was given the replacement scale of Rs.8000-13500. The applicant is also aggrieved by the fact that the respondent-department did not make any recommendation for upgradation of the pay scale of DCIOA to restore the former ratio. It is the case of the applicant that at the time of his joining in the year 1998, he was verbally assured that the pay scale of DCIOA would be restored equivalent to that of Major in the Indian Army. The Inspectorate of Armament merged with SSB w.e.f. 01.04.2001 without there being any change in duties and responsibilities and the administrative control had been transferred to the Cabinet Secretariat. However, the representation filed by the applicant dated 23.04.2012 was rejected vide impugned order dated 18.05.2012 on the ground that while the post of CIOA has been upgraded from Rs.3000-4500 to Rs.4100-5300, no specific order/approval had been made in respect of that of the DCIOA.
5. The applicant has primarily relied on the ground that the presidential sanction dated 05.07.1991 speaks of equivalence between the post of CIOA with that of Lt. Colonel and the post of DCIOA with that of Major. In other words, there is also a ratio between the CIOA and DCIOA in the same manner as between Lt. Colonel and Major. This ratio was disturbed vide order dated 23.04.1993 revising the pay scale of CIOA from Rs.3000-4500 to Rs.4100-5300, while that of the DCIOA was left untouched. The applicant seeks to question that this change has been made without having gone through the service conditions and job requirements. He further claims protection of estoppel as at the time of joining, he was assured that he would be given the equivalent scale of Major in the Indian Army.
6. The respondents have filed their counter affidavit rebutting the claim of the applicant. The main ground that has been taken up by the respondents is that it is the prerogative of the Government to decide the pay scale applicable to the post. The pay scale of the CIOA was upgraded from Rs.3000-4500 to Rs.4100-5300 vide order dated 23.04.1993 while no specific order had been passed in respect of DCIOA. The respondents have further submitted that in the Indian Army the post of Lt. Colonel is filled up from the feeder post of Major, which is not the case in the respondent-organization. However, in the same breath, the respondents have also argued that amendment is being proposed in the recruitment rules of their of CIAO for appointment by composite method in which candidature of departmental candidates shall also be considered along with outsiders for selection, subject to approval from MHA/MoL/DoP&T and UPSC.
7. The applicant has filed a rejoinder denying all the averments of the respondents in their counter affidavit. The applicant, however, submits that his main grievance is concerned with non-grant of pay scale or Grade Pay not commensurate with the pay scale pertaining to the post of Major in the Indian Army which is a condition of service for the post held by the applicant. The action of the respondents in upgrading the post of CIOA while leaving that of the DCIOA disturbs the balance. The right of the Government to revise pay scale is not something which can be exercised in an arbitrary and capricious manner. Revision of pay scales is always decided in a manner taking into account the workload, level of responsibilities, duties etc., which has been totally overlooked in the instant case.
8. In OA No. 486/2013, the principal ground adopted by the applicants include that when GP of Rs. 4800/- has been allowed to all the grades in the pre-revised pay scale of Rs.6500-10500 for all the posts under the Cabinet Secretariat, the act of the respondents in denying the same benefit to the applicants only because they are now serving under the Ministry of Home Affairs is arbitrary and irrational and they cannot be discriminated on this ground. The applicants have further submitted that when GP of Rs. 4800/- has been granted to the Field Officers, who were earlier in GP of Rs. 4600/- in the pre-revised scale of Rs.6500-10500/-, denial of the same to the applicants even when they are shouldering the same responsibilities and doing the same nature of work, is discriminatory.
9. The respondents have submitted in this regard that while the applicants are seeking pay scales at par with other security organizations i.e. RAW, ARC and SFF, SBB is not a security organization as its role has been shifted from being a security organization and it has become only a Boarder Guiding Force and for this reason it has been brought under the Ministry of Home Affairs. The respondents have further submitted that the applicants are seeking parity in pay scales of other organizations where there is post of Inspector of Armament. It has been emphatically argued by the learned counsel for the respondents that even if the persons are doing the same work, they may have and are likely to have different duties, responsibilities and confidentiality, which are sufficient for pay disparity. The same is position in the instant case and, therefore, principle of equal pay for equal work is not applicable. The respondents have further argued that the pay structure of Government is complex web involving inter related claims, which are best left to the expert bodies like the Pay Commission. It is not for the Tribunals/Courts to take up these responsibilities upon themselves.
10. In OA No. 173/2012, the applicants have assailed the Intra Office Note dated 09.05.2011 of the respondents rejecting the claim of the applicants for upgradation of pay scale in respect of Senior Inspector of Armaments from Rs.6500-10500/- to Rs.7500-12000/- with replacement pay scale in PB-2 Rs.9300-34800 with GP of Rs.4800/-. The facts of the case are that the applicants are civilian employees holding the post of Chief Inspector of Armaments (hereinafter referred to as CIOA) [Group-B gazette posts) from different dates between 02.04.2009 and 01.04.2010. The post of Senior Inspector is a promotional post of Inspector and the pay scales of both these posts consequent upon 4th Central Pay Commission (hereinafter referred to as CPC) have been:-
CPC Inspector Sr. Inspector
(a) 4th CPC 2000-3200 2000-3500
(b) 5th CPC 6500-10500 6500-10500
(c) 6th CPC GP 4600 GP 4600
11. The post of the applicants and the feeder post have been kept in the same pay scales from the 4th CPC onwards except during the revision of pay, upper limit of pay scales differed by Rs.300/-. On the other hand, the applicants hold gazetted post, whereas feeder post of Inspector is a non-gazetted one. The officers serving in the feeder post are allowed HRA as well as Compensation in lieu of quarters whereas the applicants are entitled only to HRA. Therefore, on promotion, the applicants by virtue of adverse pay scale position, on one hand do not get any pay scale revision, but on the other hand their overall allowances get reduced. Further, officers holding the feeder post of Inspector are entitled to rent free accommodation whereas the applicants are required to pay the licence fee. It is the case of the applicants that they are governed by the Inspectorate of Armaments (Inspection Staff) Recruitment (Amendment) Rules, 1993 according to which the post of Senior Inspector, which carries the pay scale of Rs.2000-3500, is filled up 100% by promotion. Earlier, the Government vide OM dated 18.12.1991 had equated the pay of Inspector of Inspectorate of Armament and Field Officers of SSB with classification of Group B Non-gazetted. It is further submitted by the applicants that after the 5th CPC, as we have seen from the chart above, both the feeder and promotional posts were given the same pay scale i.e. Rs.6500-10500. On 21.03.2001, the Inspectorate of Armament was merged with SSB Directorate w.e.f. 01.04.2001. In the meantime, the Cabinet Secretariat rectified the anomaly in the pay scale of Senior Field Officers (hereinafter referred to as SFO) and Senior Area Organizers (hereinafter referred to as SAO) by granting the pay scale of Rs. 8000-13500/- and placing in Group A in terms of the DOP&T OM dated 12.06.1998.
12. Further, it is the submission of the applicants that though historically the post of Senior Inspector is treated at par with SAO and SFO, but after the 6th CPC the posts of SFO and SAO have been granted GP of Rs.5400/- whereas the post of Senior Inspector has been granted the GP of Rs.4600/-, which is two stages below the GP of RS.5400/-. It is also the case of the applicants that the pay of SFOs/SAOs were upgraded to Rs.8000-13500/- on representations whereas no `such case for upgradation of pay scale of Senior Inspector was taken up which resulted in the present anomaly. In the meantime, all posts carrying pre-revised pay scale of Rs.6500-10500 under the Cabinet Secretariat had been allowed the GP of Rs.4800/- while the applicants holding the feeder post of Field Officer having the same pay scales sought the same GP of Rs.4800/-, which was rejected. The applicants because of their historical parity with SFOs/SAOs sought the very same pay scale of Rs.8000-13500 with GP of Rs.5400/- w.e.f. 01.01.2006 or from the date they became Senior Inspectors. However, instead of projecting the case of the applicants for the GP of Rs.5400/-, the respondents projected the case for grant of GP of RS.4800/- which was rejected vide the impugned orders dated 15.03.2011 and 09.05.2011
13. The applicants have primarily relied upon the following grounds:-
(i) In the first place, on account of historical parity, the posts of SFOs/SAOs of SSB were equated with the post of Senior Inspector and SFOs/SAOs have been granted the pay scale of Rs.8000-13500 with GP of Rs.4800/- prior to pre-revised Rules of 2008 and GP Rs.5400/- by Revised Pay Rules, 2008. Therefore, granting lesser GP to the applicants is discriminatory and violative of Articles 14 & 16 of the Constitution of India.
(ii) In the second place, rejection of the case of applicants is not tenable because both the pay scales in the Cabinet Secretariat have been allowed GP of Rs.4800/-.
(iii) In the third place, the applicants are aggrieved on the ground that they are getting lesser pay than the pay of the feeder cadre post consequent upon their promotion for the reasons that have been expressed earlier.
(iv) In the fourth place, the applicants, who enjoy the higher responsibility than the officers holding feeder cadre post, have relied upon the decision of the Honble High Court of Punjab & Haryana in Sunder Lal Jain & Ors. versus State of Haryana and Tamesh Kumar Dangi & Ors. Versus State of Haryana [WP(C) No. 4176/1988 decided on 12.05.2000] wherein the Honble High Court ruled that reducing the pay on promotion is violative of Articles 14 & 16 of the Constitution.
14. The respondents have filed their counter affidavit denying the averments in the OA wherein they have submitted that the applicants are seeking parity with the post of SFOs/SAOs in SSB in terms of pay & perks. They further submit that upgradation of posts of SFO and SAO had taken place in the year 1999 vide order dated 20.09.1999 when the Inspectorate of Armaments was an independent unit of the DG(S) under the administrative control of the Cabinet Secretariat. Now the applicants are precluded from claiming parity with the pay and perks of the incumbents of SSB, which was an independent unit of DG(S) at that particular point of time. Moreover, the incumbents to which parity is being claimed are governed by separate statutory recruitment rules of their respective cadre which bears no relevance to the applicants who formed part of SSB w.e.f. 01.04.2001 only and whose services are governed by separate statutory recruitment rules. It is further submitted that the hierarchy, pay structure and other service related matters of the applicants are being regulated strictly in terms of the provisions of aforesaid recruitment rules which clearly stipulated the scale of Rs.2000-3500 (pre-revised) for the Senior Inspectors and Rs.2000-3200 (pre-revised) for the Inspector of Armaments. The respondents contend that after promulgation of the Government decision on the recommendations of 6th CPC, the scale of Senior Inspector and that of the Inspector of Armaments was placed in the corresponding scale of Rs.9300-34800 with GP of Rs.4600/-. In view of the same scale for promotional and feeder post in the cadre, a proposal was mooted for authorizing the GP of Rs.4800/- to the Senior Inspectors of Armaments in SSB. After due consideration and in consultation with the Department of Expenditure, Ministry of Finance, the said proposal was not acceded to by the Government. Despite rejection of the proposal for authorizing the GP of Rs.4800/- to the Senior Inspectors, the respondents mooted yet another proposal for extending the benefits of fixation of pay of Inspectors of Armament on their promotion to the rank of Senior Inspectors of Armament in terms of the provisions of FR22(1)(a)(i) which provides for grant of one increment in the lower rank while fixing the pay in the promoted rank. It is the case of the respondents that the pay of Inspectors of Armament on their promotion to the rank of Senior Inspectors of Armament is being regularized by the provisions of FR 22(III) where there is no provision of an increment in the lower rank, and the said proposal is under active consideration of the Government.
15. The respondents further submitted that contrary to the prayer for authorizing the GP of Rs.5400/- made vide the instant OA, the applicant no.1 (RS Chauhan) has already filed OA No.1988/2011 for declaring his pay fixed in terms of FR 22(1)(a)(i) with GP of Rs. 4600/-, on his promotion to the rank of Senior Inspectors of Armament, as legal and valid. The said matter is also pending before this Tribunal. This clearly reflects that the applicant has virtually accepted the GP of Rs. 4600/- by praying for establishing his pay fixed in terms of FR 22(1)(a)(i) at the time of his promotion to the rank of Senior Inspectors of Armament.
16. The basic argument advanced by the respondents is that SFOs/SAOs and the applicants are in two different services having different pay scales. The post of Senior Inspectors of Armament is Group B gazette post while the post of Inspector is admittedly a feeder post. Further, admittedly there was a difference of Rs.300/- in their pay scales. However, after implementation of the 5th CPC report, both these posts were brought at par.
17. Now we take the lead case wherein the learned counsel for the respondents has placed reliance on the following decisions:-
i) Secretary, Finance Department V/s. West Bengal Registration Service Association [1993 Supp(1) SCC 153];
ii) State of West Bengal V/s. Hari Narayan Bhowal [1994 (4) SCC 78];
iii) State of Haryana V/s. HESPSA [2002 (6) SCC 72];
iv) Deb Narayan Shyam V/s. State of West Bengal [2005 (2) SCC 286];
v) Sohan Singh Sodhi V/s. Punjab SEB [2007 (5) SCC 528];
vi) Union of India V/s. Manik Lal Banerjee [ 2006 (9) SCC 643];
vii) State of Punjab V/s. Surjit Singh [2009 (9) SCC 514];
viii) State of M.P. V/s. Ramesh Chandra Bajpai [2009 (13) SCC 635];
ix) Pankaj Grover V/s. UOI [OA No. 3404/2011 decided by the Principal Bench];
x) G.C. Kabdwal V/s. Union of India (OA No.332/2013 decided by the Principal Bench).
18. We have heard the learned counsel appearing for both the parties. We have also carefully examined the submissions of the rival parties made in their respective pleadings as also their oral submissions.
19. In order to understand the paradigm of the issue involved, we would like to examine the Inspectorate of Armaments (Inspection Staff) Recruitment (Amendment) Rules, 1993 which provide the scale of pay of Rs.3000-4500 for CIOA while the mode of recruitment is by deputation or re-employment. For the post of DCIOA the scale of pay is Rs.2200-4000 and the mode of recruitment is again by deputation or re-employment. According to the counter affidavit filed by the respondents, it has been provided that necessary amendment is being proposed in Recruitment Rules of Chief Inspector of Armaments for appointment of CIOA by composite method of recruitment in which the candidature of departmental candidate shall also be considered along with the outsider for selection. The notification shall be subject to approval by MHA/MoL/DoP&T and UPSC.
20. In other words, amendment in the recruitment rules is under consideration wherein the post of DCIOA, as we have been given to understand, is being converted into the feeder post to that of CIOA which is to be filled up as a consequence of the proposed amendment by promotion wherein the departmental candidates are to be considered along with outsiders. Impliedly, the respondents have recognized the logic of the applicant to a certain extent. However, making the post of DCIOA as feeder cadre to CIOA is not the same as has been demanded by the applicant. The applicant basically seeks equivalence with the post of Major in the Indian Army in accordance with the Presidential Sanction dated 05.07.1991. For the sake of clarity, we reproduce the Presidential sanction as under:-
I am directed to convey the sanction of the President to the prescription of the following civil scales for the posts of Inspector and Deputy Inspector in the Inspectorate of Armaments of Directorate General of Security. These pots were sanctioned vide this Secretariats letter of even number dated 6.3.1969.
1. Inspector Rs.900-40-1100-50/2-1250
2. Dy. Inspector Rs.350-25-600-35-670-EB-35-950 This issues with the concurrence of the Ministry of Finance vide their U.O. Notes No.S-813-DFA(EA)/70 dated 14.10.1970 and S-616-DFA(EA)/71 dated 26.6.1971
21. It appears that there was a ratio prevailing which was disturbed in the 4th CPC. As we have noted in the 4th CPC the scale of CIOA was Rs.3000-4500 while that of the DCIOA was Rs.2200-4000 which was disturbed vide OM dated 23.04.1993 by fixing the scale of CIOA from Rs.3000-4500 to Rs.4100-5300 while that of the DCIOA was allowed to remain at Rs.2200-4000. In the 5th CPC, as we have already noted, mere replacement scales were given, which have since been maintained even by the 6th CPC. However, we are not aware whether while revising the pay scale of CIOA vide order dated 23.04.1993, the workload and other factors were taken into consideration or not. Clearly this lies in the domain of the expert body like the Pay Commission. This Tribunal is not equipped with nor does it have the requisite expertise or the time for that matter to make comparison. Granting of scale is a delicate task and a large number of incumbents of similarly situated posts are watching hawk-eyed as to the benefits granted to the incumbents of these posts. Any upgradation may be without having a corresponding effect on other posts, not only within that department but in other departments also, may become a cause for litigation as being disturbing the ratio. Hence, the issue has to be considered with utmost caution.
22. In view of the above, we find there are following two issues which we ponder over at this point of time:-
(1) Whether applicants can seek parity in pay scales with other organizations using the same arguments and involving the principle of equal pay for equal work?
(2) Whether applicants can claim parity in pay scales and Grade Pay with others belonging to different organization only on the ground that their designation may be similar or the organization may be under the control of the same Ministry and having originated from a common source or there existed historical parity at one point of time?
23. Insofar as the first of the issues is concerned, it is to be noted that the claim of equal pay for equal work has been considered by the Honble Supreme Court in a series of decisions. The Honble High Court of Allahabad in case of State of U.P. versus U.P. & Others V/s. U.P. Madhyamik Siksha Parishad Shramik Sangh & Others [MANU/UP/0542/2003] was faced with the problem as to what extent this principle of equal pay for equal work could be stretched. The Honble High Court held as under:-
25. In our opinion, the principle of equal pay for equal work has a limited application, as is evident from the recent trend of decisions of the Supreme Court. In particular it cannot apply when the qualifications and the mode and procedure of regular appointment have not been followed.
26. In Secretary, Finance Department v. West Bengal Registration Service Association, AIR 1992 SC 1203, it was observed :
"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."
27. In Dr. Bajrang Bahadur Singh v. State of U.P. 1997 (3) AWC 1476, a Division Bench of this Court observed :
"From the conspectus of views taken in the aforementioned decided cases, the position is clear that to substantiate a claim of higher scale of pay/salary on the basis of the principle equal pay for equal work the petitioners will have to establish that they are equally placed in all respects with the person or persons whose scale of pay/salary they claim. They must allege and prove that the mode of recruitment, eligibility qualifications prescribed, the nature of duties, responsibilities discharged and the service rules if any applicable to the two posts are similar. They cannot succeed in the case merely by showing that they have been discharging the same duties which are being discharged by persons holding the other class of posts."
28. The above decision has been approved by a Full Bench of this Court in Ajai Kumar Jaitly v. State of U.P. [MANU/UP/0001/1999].
29. In Shyam Babu Verma v. Union of India [MANU/SC/0654/1994], it has been held that the nature of work may be more or less the same but the scale of pay may vary based on academic qualification or experience which Justifies classification.
30. In State of Haryana v. Tilak Raj and Ors.[ MANU/SC/0460/2003], the Supreme Court pointed out that the principle of equal pay for equal work is not always easy to apply. There are Inherent difficulties in comparing and evaluating the work done by different persons in different organisations or even in the same organisation.
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35. In State of Haryana v. Tilak Raj (supra), the Supreme Court (in paragraph 11 of its decision) observed that a scale of pay is attached to a definite post and in case of a daily wager, he holds no post. Hence, he cannot be compared with the regular and permanent staff for any or all purposes including a claim for equal pay and equal allowances. Equal pay for equal work is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scale and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula.
36. In State Bank of India v. M.R. Ganesh Babu [MANU/SC/0331/2002], the Supreme Court observed that the principle of equal pay for equal work must depend upon the nature of work done and it cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities make 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 scales 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.
37. In State of Tamil Nadu v. M.R. Alagappan [MANU/SC/0482/1997], the Supreme Court observed that the Deputy Agricultural Officers cannot be given the same pay scales as the Agricultural Officers although they may be substantially discharging the same type of duties and their place of work may be interchangeable. The Deputy Agricultural Officers are recruited by promotion from the lower category of Assistant Agricultural Officers. They remain non-gazetted employees in the subordinate service while the Agricultural Officers are directly recruited to a Gazetted service. The qualifications are different, and though substantially they carry out the same type of work and duties, the important assignments are exclusively entrusted to Agricultural Officers.
24. In S.C. Chandra & Ors. versus State of Jharkhand & Ors. [JT 2007 (10) SC 272], the Honble Supreme Court held that fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay). The Honble Supreme Court has further held as under:-
17. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
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23. In Federation of All India Customs and Excise Stenographers (Recognized) and Ors. v. Union of India and Ors. [MANU/SC/0155/1988], this Court observed:
In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula.
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25. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book `The Spirit of Laws' still broadly holds the field in India today. Thus, in Asif Hameed v. State of Jammu and Kashmir [MANU/SC/0036/1989], a three Judge bench of this Court observed (vide paragraphs 17 to 19):
17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356 US 86 observed as under:
All power is, in Madison's phrase, "of an encroaching nature". Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint....
Rigorous observance of the difference between limits of power and wise exercise of power-between questions of authority and questions of prudence-requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. (Emphasis supplied) Relying upon the decision in Government of West Bengal vs. Tarun K. Roy and others [2004) 1 SCC 347], the Honble Supreme Court went ahead to hold that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply. Even if the employees in two groups are performing identical work, they cannot be granted equal pay for equal work if there is no complete and wholesale identify e.g. a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if classifications of services, educational qualifications, nature of jobs, responsibilities, experience, method of recruitment etc. are different. This is also supported by the decision in State of Haryana & Otehrs versus Charanjit Singh & Others [JT 2005 (12) SC 475].
25. In view of the above decisions, it is amply clear that courts/tribunals should not be guided by superficial considerations in allowing parity at the drop of the hat. Deeper issues have to be examined and such examination lies within the executive domain which can come about only by expert bolides like the Pay Commission.
26. Insofar as the second of the issues is concerned, it has to be expected that there are services and services within the Government discharging different kinds of duties. Even when similar kind of work is being done by employees of one organization with different classification of service, others cannot claim parity in the pay scales on that ground. For instances in case of Indian Foreign Service Group A and Group B, the nature of work is very similar or even the same but there is difference in the level of responsibilities and an admitted difference in output. Under such a situation, no parity in pay can be granted. Apart from the above, there would be a better example of the Administrative Services of the States and the Indian Administrative Service. This issue has been dealt with in case of Shri Harjeet Singh & Ors. versus Union of India & Ors. (OA No. 4254/2012 decided on 10.11.2014), wherein this Tribunal held as under:-
19. In totality of facts and circumstances of the case, we do not find the argument of historical parity as sustainable. We further find that the applicants and Assistants & PAs of CSS/CSSS belong to two different Services. However, if the applicants were aggrieved by the order dated 25.09.2006, the same could have been challenged at that point of time which, as we find, has not even been challenged in this OA. We further find that the issue of parity being raised is best left to be decided by expert bodies like Pay Commission. Since the Seventh Central Pay Commission has already been constituted by the Government, it is just and proper that the applicants should approach the same for consideration of their grievances. Thus, we find no merit in this OA and the same is dismissed being devoid of merits. There shall be no order as to costs. In Yash Pal Singh and Ors. Vs. Union of India through The Secretary, Ministry of Law and Justice, Legislative Department, The Secretary, Ministry of Finance, Department of Expenditure and The Secretary, Department of Personnel and Training [OA No. 917/201 & OA No. 2726/2011 decided on 20.12.2013], this Bench of the Tribunal has clearly upheld the ratio principle of equal pay for equal work can apply only when there is complete and wholesale identity between two groups.
27. The issue of pay fixation has also been examined by this Tribunal in OA No.837/1991 and 1378/1987 wherein both the Benches have held clearly that the work of fixation of pay scales and drawing of parity are best left to the expert bodies like the Pay Commission. This principle has been further supported in Food Corporation of India & Others versus Ashis Kumar Ganguly [2009 (7) SCC 734] wherein the Honble Supreme Court has held that issues pertaining to pay scales etc. are best left to the expert bodies like the Pay Commission and the Courts are only empowered to interfere when they find the decision grossly violative of the rules and law and prejudicial to the sections of the employees and taken in ignorance of material and relevant facts. Likewise, in the case of State of West Bengal versus Subhas Kumar Chatterjee & Others [2010 (11) SCC 694], the Honble Supreme Court has clearly held that 26. Yet another question that arises for our consideration is whether a writ of mandamus lies compelling the State to act contrary to law? The State Government having accepted the recommendations of the successive Pay Commissions gave effect to those recommendations by framing statutory rules being ROPA Rules and scales of the employees have been accordingly fixed. The respondents did not challenge the vires of the said Rules under which they were entitled to only a particular scale of pay. The State Government is under obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules nor the Court can direct the Government to act contrary to rules. No Mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No court can issue Mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law. In the instant case, the impugned order of the High Court virtually compelled the State to give pay scales contrary to statutory rules under which pay scales of the employees are fixed. The decision of the Chief Engineer being contrary to ROPA Rules, 1998, cannot be enforced even if such a decision was taken under the directions of the Administrative Tribunal. The orders of the Tribunal as well as of the High Court suffer from incurable infirmities and are liable to be set aside. This decision has been further supported and reiterated in Kshetriya Kisan Gramin Bank versus D. B. Sharma and Others [2001 (1) SCC 353]; Manmatha Nath Ghosh and Others versus Baidyanath Mukherjee and Others [2005 (13) SCC 630]; Federation of All India Customs & Central Excise Stenographers (Recognized) & Others versus Union of India & Others [1988(3) SCC 91] and Supreme Court Employees Welfare Association & Others versus Union of India & Others [1989 (4) SCC 187], to mention a few.
28. In a more recent decision in Pankaj Grover versus Union of India [OA No. 3404/2011 decided on 09.05.2014), this Tribunal held as under:-
19. In conclusion, we take cognizance of the fact that the Issues relating to grant of pay scales, parity in pay scales vis-`-vis inter service and inter post are all to be decided by the Pay Commission. Since, a new Pay Commission has been constituted and is sitting, it is better that these issues be referred to the Pay Commission. Insofar as the instant OA is concerned, the issues framed have been consistently decided against the applicant and as such, we find the OA devoid of substance. Therefore, it is dismissed without costs. In G.C. Kabdwal versus Union of India & Ors. (OA No. 33/2013 decided on 07.08.2014), this Tribunal held as under:-
17. There is nothing in the pleadings to indicate that the Government had adopted the recommendations contained in para 3.4.7. Hence, we are reluctant to pass any order directing the respondents particularly when the 7th Pay Commission has already been set up and the matter stands to be encompassed within its report.
18. In view of our above discussion, we find the instant OA devoid of merit and, hence, the same is accordingly dismissed, leaving the parties to bear their own costs.
29. In conclusion, what we find is that the applicants are seeking parity in pay scales with other services. Admittedly, they have had similar holding and historical parity at the origin. However, in all the three services, as we have seen, their roles have changed and they are distinguished by their roles. In the lead case (OA No.486/2012), the SSB is no longer a security organization but is a Border Guiding Force. The applicants are, however, seeking comparison of scales with organizations where there is no post of Inspector of Armaments. Further, we have already held that even where persons are doing the same and identical work, parity cannot be conceded as a matter of mathematical formula, but it is subject to so many consideration like source of recruitment, educational qualifications, responsibilities, duties, quality of output etc. etc. It is also subject to classification of services and where the services are different in classification, parity in pay scales cannot be claimed as a matter or right. We have further found that the Honble Supreme Court, time in and time out, has cautioned that fixation of pay is a complex exercise and the services of the country consist of a complex web of service in different classifications and groups. However, there is an inter services and intra services balance. This is according to constitutional Scheme. It is only expert bodies like the Pay Commission which can determine the inter services and intra services claims by taking all the requisite factors into consideration. This is wholly within the administrative domain and also it is not safe for the courts/tribunals to encroach upon the jurisdiction of expert body which will upset the delicate balance and make the work of the Pay Commission more difficult.
30. Taking note of the fact that Seventh Pay Commission has already been constituted, we feel that it would be better to refer the issue of pay scales involved in this OA to the Seventh Pay Commission to decide objectively considering all aspects of the issue rather than piecemeal decision being given at this level. As we have already noted, granting of benefit to one cadre in such a delicate situation may open a Pandora box of litigation. We have also taken note of the fact that the recruitment rules of the posts are also in the process of amendment, and, therefore, it shall not be proper on the part of the Tribunal to take a decision without seeing what amendments are being made. Therefore, the instant Original Applications are being disposed of in the following terms:-
(a) The respondent-department shall examine the workload, duties, responsibilities and risk factors etc. involved with the job of CIOA and DCIOA and make a reference to the Seventh Pay Commission, which is already in sitting, for its decision.
(b) There shall be no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/