Central Administrative Tribunal - Allahabad
Deependra Singh vs Union Of India on 3 August, 2018
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 3rd day of August 2018
PRESENT:
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
Original Application No. 330/1232 of 2011
1. No. F/98 Fireman Dipender Singh aged about
50 years S/o Late Shrawan Singh R/o 191 A
Naini Bajar, Naini Allahabad.
2. No. 6966713 LH Fire Raman Nath aged about
57 years S/o Shri Ram Lakhan R/o 1/74
Kazeepur, Naini, Allahabad.
3. No. 6967219 FED R. S. Singh aged about 53
years S/o Late Chandrika Prasad R/o Sanjai
Nagar, Naini Allahabad.
4. No. 28205 LHF Lalla Yadava aged about 53
years S/o Late Babole Yadava R/o Vill
Ramsagar, Naini Allahabad.
5. No 6963921 LHF Hira Lal aged about 54
years, S/o Late Raj Mani Mishra R/o 931
New Market Naini Allahabad.
6. No. 28297 LHF Dan Bahadur aged about 50
years S/o Viswanath R/o Nai Bazar, Naini,
Allahabad.
7. No. 13857615 FED J.P. Mishra aged about 54
years S/o Shri Ram Deo Mishra R/o Vill &
P.O. Jurapur, Allahabad.
8. No. 6967670 FED R.C. Singh aged about 56
years S/o Late Shiv Bachan Singh R/o 71B
Triveni Nagar Naini Allahabad.
9. No. 6967788 FED Shatrughan Prasad aged
about 56 years S/o Late Ram Asrey R/o
Sanjay Nagar, Naini Allahabad.
10. No. 6968321 FED Ram Jagram aged about 53
years S/o Bageshwar Ram R/o Kazipur Naini,
Allahabad.
11. No. 6968322 FED Damu Oran aged about 54
years S/o Late Karma Oran R/o Kazipur
Naini, Allahabad.
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12. No. 6968585 FED J.K. Sharma aged about 35
years S/o Jai Krishan R/o 114/39 Jawahan
Nagar, Naini Allahabad.
13. No. 6969895 FED Shailesh Kumar Aged about
27 years S/o Shri Yashwant SinghR/o 6 B
Chak Raghnath Naini, Allahabad.
14. No. 6966680 FED Udai Singh aged about 42
years S/o Late Bishu Ram R/o 22 D Nai
Bazar, Naini, Allahabad.
15. No. 6968816 FED Mohd Naim aged about 50
years S/o Late Nabi RAsul R/o Main Road,
Naini Bazar, Allahabad.
16. No. 6967437 FED Visheshwar Singh aged
about 53 years S/o Shri Ram Jit Singh R/o
230 Triveni Nagar, Naini, Allahabad.
17. NYA FED Vikram Singh aged about 30 years
S/o Shri Budhdhasen Singh R/o 95 D/5 D
Chak Niratul Chaufatka, G.T.B. Nagar,
Allahabad.
18. No. 6968586 FED R. K. Yadava aged about 32
years S/o Phookan Yadav R/o Ram Sagar
Chaka, Naini, Allahabad.
19. EF/68 Fireman Rajpati Singh aged about 58
years S/o Mahabir Singh R/o Village
Dulhapur P.O. Noorpur District Kaushambi.
20. FF/73 Fireman Bari Lal aged about 57 years
S/o Late Shiv Dhari R/o Village
Mohiddinpur P.O. Dandupur, District,
Allahabad.
21. FF/75 Fireman Raj Singh aged about 53
years S/o Late Gyan Singh R/o 22 D Nai
Bazar Naini, Allahabad.
22. FF/76 Fireman B.P. Singh aged about 55
years S/o Late Chhabi Nath Yadava R/o
Sanjai Nagar, Nai Bazar Naini, Allahabad.
23. FF/78 Fireman Ram Dayal aged about 54
years S/o Late Bal Govind R/o Mahewa,
Naini, Allahabad.
24. FF/79 Fireman R. P. Ojha aged about 54
years S/o Late B. N. Ojha R/o Nai Basti
130 A/15 Teliyarganj, Allahabad
25. FF/80 Fireman Udal Singh aged about 53
years S/o Late Ram Abhilash Singh R/o
Village Khalangi P.O. Ganja, District
Kaushambi.
26. FF/84 Fireman Dashrath Lal aged about 54
years S/o Shri Hari Shankar Mishra R/o
Village Tenduwawan Naini, Allahabad.
27. FF/85 Fireman Jiwan Lal aged about 54
years S/o Late Hari Lal R/o Dadri Naini,
Allahabad.
28. FF/87 Fireman Ram Nath aged about 54 years
S/o Late Bachchoo Lal R/o 315 Kachchi
Sarak Daraganj, Allahabad.
3
29. FF/90 Fireman Chhangu Lal aged about 54
years S/o Late Ram Adhar R/o Ismailpur
Kotwa, Salahpur, Allahabad.
30. FF/92 Fireman J.P. Tiwari aged about 53
years S/o Late Kalidin Tiwari R/o Village
Sanjai, Baraon, Karchhana Allahabad.
31. FF/93 Fireman H.P. Patel aged about 53
years S/o Late Prasad R/o Village Udai Ka
Pura, Atrampur, Allahabad.
32. NYA LHF Jamuna Prasad aged about 54 years
S/o Late Hari Lal R/o Village Dadari,
Naini Allahabad.
33. NYA LHF Ved Prakash aged about 54 years
S/o Late R.N. Upadhyaya R/o Dugrajpur,
Naini, Allahabad.
34. FF/97 Fireman Ashok Kumar aged about 52
years S/o Late Indal Yadav R/o Village
Kakra Kotwa, Hanumanganj, Allahabad.
35. FF/99 Fireman H. Narain aged about 52
years S/o Shri Kamla Shankar R/o Sanjai
Nagar, Naini, Allahabad.
36. FF/101 Fireman Rajender aged about 52
years S/o Late Asha Ram Sanjai Nagar
Naini, Allahabad.
37. FF/102 Fireman R. C. Mishra aged about 53
years S/o Shri Bhagi Rathi Mishra R/o
Village Sarangapur, Dandupur, Allahabad.
38. FF/ 106 Fireman D. D. Shukla aged about 52
years S/o Late Mahanarain Shukla R/o
Village Balapur, Karchhana, Allahabad.
39. FF/105 Fireman Ram Lal aged about 48 years
S/o Late Shri Nath R/o Village Shyam Lal
Ka pura Khaka, Naini, Allahabad.
40. FF/108 Fireman Mallu aged about 52 years
S/o Late Panna Lal R/o Village & P.O.
Gauhaniyan, Allahabad.
41. FF/110 Fireman Panna Lal aged about 52
years S/o Late Ram Milan R/o Village
Hasimpur, Karchhana, Allahabad.
42. FF/111 Fireman Nakul Singhaged about 51
years S/o Late R. K. Singh R/o Nai Bazar
Naini, Allahabad.
43. Nya LHF R. A. Yadava aged about 46 years
S/o Late Murli Yadava R/o Village
Chhabilahan P.O. Utraon District
Allahabad.
44. FF/113 Fireman Bhagi Rathi aged about 54
years S/o Late Bahadur Lal R/o Chak
Daudnagar Naini, Allahabad.
45. FF/114 Fireman Chandrika Prasad aged about
54 years S/o Late Ram Autar R/o Mahara Ka
Pura, Naini, Allahabad.
4
46. FF/117 Fireman Chandrika Prasad aged
about 50 years S/o Late Suirajdin, R/o
Village, SArangapur, Naini, Allahabad.
47. Nya LHF B.K.Singh aged about 48 years S/o
Late Jagnarain Singh R/o Near Bal Bharti
School A.D.A. Colony, Naini, Allahabad.
48. FF/124 Fireman Puranmasi aged about 54
years S/o Late Sikhu R/o A 2/71 A.D.A.
Colony Naini, Allahabad.
49. FF/128 Fireman Shankar Lal aged about 40
years S/o Late Ram Lagan R/o Chhota Chaka
Naini, Allahabad.
50. FF/129 Fireman S.N. Jama aged about 44
yers S/o Shri Mohd. Jaiki Ahmad R/o 182
Jail Road, Naini, Allahabad.
51. FF/137 Fireman A. K. Singh aged about 36
years S/o Late B. N. Singh R/o 219 Kachchi
Sarak Daraganj, Allahabad.
52. FF/140 Fireman R. D. Pandey aged about 45
years S/o Shri G. Ram Pandey R/o Village
Dhanuhan Naini, Allahabad.
53. FF/141 Fireman A. K. Singh aged about 42
years S/o A. K. Singh R/o EC-113 A. D. A.
Colony, Allahabad.
54. FF/142 Fireman S. C. Dubey aged about 42
years S/o Shri Indramani Dubey R/o EX-55
A.D.A. Colony, Naini, Allahabad.
55. FF/145 Fireman U.S. Upadhya aged about 48
years S/o R. M. Upadhya R/o 148 Tularam
Bagh, Allahabad.
56. FF/148 Fireman Silwant Singh aged about 32
years S/o Shri Kandhai Lal Singh R/o
Village Mahuwari, Naini, Allahabad.
57. FF/150 Fireman B.P. Yadava aged about 34
years S/o J. P. Yadava R/o 339 Indrapuri
Colony, Bairahna, Allahabad.
58. FF/152 Fireman Sanjai Kumar aed about 44
years S/o Late Munni Lal R/o 29 Matiyara
Raod, Allahabad.
59. 9652379 Fireman S. N. Ram aged about 43
years S/o Shri Nazgina Ram R/o Kazipur,
Naini, Allahabad.
60. FF/153 Fireman Mangal Singh aged about 32
years S/o Shri Radhey Shyam Singh R/o
Village Sanjai Nagar Naini, Allahabad.
61. FF/154 Fireman Vinod Kumar aged about 31
years S/o Shri Gopal Singh R/o Nai Bazar
Naini, Allahabad.
62. 6964253 LHF K.P. Singhaged about 56 years
S/o Late Upender Narain Singh R/o 78/E
Railway Colony, Chheoki, Allahabad.
63. 6964253 LHF R.B. Sonkar aed about 58 years
S/o Late N.L. Sonkar R/o 32 Pura Parain
Daraganj, Allahabad.
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64. 6998612 FED R. C. Rai aged about 50 years
S/o Late Chandrika Rai R/o EWS/C4/4 A. D.
A. Colony Naini, Allahabad.
65. 73 FF/138 Fireman Mathura Prasad aged
about 40 years S/o Shri Ram Dular R/o
Village Rani Mailahan, Allahabad.
66. 6967639 FED Shambhu Nath Sharma aged about
47 years S/o Shri Baij Nath Sharma R/o 345
Naini, Bazar Naini, Allahabad.
67. FF/77 Fireman Ram Lochan aged about 52
years S/o Late Sita Ram R/o 118 Chak Daud
Nagar Naini, Allahabad.
. . . Applicants
By Adv: Shri Swayambar Lal
V E R S U S
1. Union of India through Defence Secretary
Ministry of Defence Govt of India South
Block New Delhi - 110011.
2. Director General Ordnance services (OS-8C),
Army Headquarters, DHQ PO NEW Delhi -
110011
3. Officer in Charge, Army Ordnance Corps
Records, AOC record Office Secunderabad -
21
4. Commandant, Central Ordinance Depot,
Chheoki, Allahabad.
. . .Respondents
By Adv: Shri Abhinav Tripathi
O R D E R
1. The present Original application has been filed by applicants Dipender Singh and others under section 19 of Administrative Tribunal Act, 1985 seeking the following reliefs:
A. To Issue a Writ, Order or direction in the nature of certiorari to quash the order of respondent No. 4dated 15 Jul 2010 (Annexure A-1 to compilation No. 1) B. To issue a Writ, Order or direction in the nature of Mandamus directing the 6 respondents to pay the overtime wages for the work performed by the applicants beyond 44.75 hours in a week from 1 Jan1994 onwards along with 18% P. A. interest from the date of due amount to the date of actual payment.
C. To issue another writ, order or direction in favour of the applicants as deem fit and proper in the circumstances of the case.
D. Award the cost of application in favour of the applicants.
2. It has been averred in the application that applicants are serving as fire fighting staff in Central Ordnance Depot Chheoki Allahabad and that the applicants are performing 48 hours duty in a week in the Depot whereas the other staff serving in the same depot are performing 44.75 hour in a week and therefore, the applicants are working for 3.25 hours extra in a week.
3. It has been further averred in the application that similarly situated employees of 506 Army base workshop Jabalpur raised a dispute before Central Government Industrial Tribunal-cum-Labour Court at Jabalpur through their Union. The CGIT-cum-Labour Court Jabalpur gave Award in favour of employees serving as fire staff in 506 Army Base workshop of Jabalpur published in Govt. gazette Notification dated 25/12/1999 by awarding them overtime allowance.
4. The Award was challenged in Writ petition No. 1086/2000 titled Union of India v/s General Secretary and ano., wherein the Hon'ble High Court 7 at Jabalpur vide order dated 15.2.2006 was pleased to uphold the Award and allow payment of extra work performed by the applicants and directed arrears of over time allowance from the month of January 1994 onwards which was implemented by the respondents and thereby the arrears were paid to Fireman of 506, Army base workshop, Jabalpur.
5. Applicants further case is that their representation for overtime allowance was rejected by the department on the ground that the benefit of the judgment/Tribunal is applicable to the petitioner therein and inapplicable to the present applicants. Therefore, the non-payment of overtime wages for the extra hours of duty performed by the applicants is discriminatory viz-a-viz the Fireman of 506 Army base workshop, Jabalpur since the applicants and the Fireman of Jabalpur workshop are performing similar duties and doing overtime work.
6. The applicants case is that they are working as Firemen in Central Ordnance Depot, Chheoki, Allahabad claim parity with the Fireman of 506 Army base workshop, Jabalpur regarding overtime allowance and which claim have been refused by the respondents by way of impugned order and therefore, being discriminatory violates the rights of the applicants under Article 14 & 16 of Constitution of India. Therefore, petitioners seek quashing of the impugned order dated 15.07.2010.
7. Applicants of Central Ordnance Depot, Chheoki, Allahabad claim is that they are performing 48 hours duty in a week whereas their colleagues in the same depot are performing duty for 44.75 hours in a week and therefore, they are entitled to overtime 8 allowances for extra hour duty on parity of their colleagues in 506, Army base workshop, Jabalpur who have been given the relief of overtime allowance and same has been implemented by the Ministry of Defense.
8. In their counter affidavit, the respondents have taken the plea that the services of the applicant belongs to Fire Fighting Service which is governed by para 444 of Regulations for the Army Ordnance Services Part I and Army Instructions 135/57. As per para 444 of RAOS Part I, Fire Staff in the forces are to work for 08 hours round the rock in 03 shifts and thus they are required to work in 03 shift of 08 hours round the clock in 03 shifts. As per Army Instructions, the working hours of the fire crew in 08 hours per day in a shift and thus they are required to work in 03 shifts of 08 hours each. It has also been clarified that extra element to cover compensatory leave for working on Sunday/Holidays as also absence due to sickness has been authorized which works out at 33½ of the total strength and the same has already been employed. Thus as per terms of employment, accepted by the applicants, they are required to work for 48 hours in a week and 192 hours in a month. Though some of other employees who do not fall under Fire Brigade Staff working in CODs including COD Chheoki are working only for 45½ hours in a week on the basis of 08 hours X 05 days full day 5½ hours on Saturday being half working day. Merely working for more than their other colleagues in other branches under Ministry Defence cannot be taken to be working overtime duty hours of the category of the applicants are prescribed to be 08 hours a day and 48 hours a week.
99. Respondents seek dismissal of the present application on the ground that Government of India vide O.M. No. F 14(2)/73/616/S/D (Civ-II) dated 05th November 1973 had granted the entitlement of overtime allowances inter alia to Fire Brigade Staff in Ordnance Factories and other Defence Industrial Establishments registered under the Factories Act with effect from 18 May 1972. Whereas Central Ordnance Depot, Dhheoki, where the applicants are working as Fire Staff, is neither an Ordnance Factory nor a Defence Industrial Establishment registered under the Factories Act and is not involved in any manufacture or production process which is undertaken by an Ordnance Factory & falls under the different department of Defence Production within Ministry of Defence as per the allocation of Business Rules.
10. Learned for applicants submitted that the nature of work, sensitivity of service and job classification for the firemen working in Central Ordnance Depot Chheoki and 506, Army base workshop, Jabalpur are identical. In support of their contention the applicants have raised the following contentions:
(1) The applicants are entitled to overtime pay at parity with firemen of 506, Army base workshop, Jabalpur when the applicants too are working as firemen;
(2) The action of the respondents in denying the over time allowance parity is arbitrary, illegal and discriminatory inasmuch as the respondents have extended the benefit of 10 overtime allowance to firemen of 506, Army Base Workshop, Jabalpur, who were party through their Union in the Award announced by Industrial Tribunal-cum-Labour Court at Jabalpur and upheld by the Hon'ble High Court without giving the benefit of the same to the applicants who are similarly situated. It would be pertinent to note that these facts and the implementation of Award and Judgment of Jabalpur has not been controverted by the respondents though they state that under a mistaken oversight, a wrong interpretation was given and which the government intends to rectify and withdraw the overtime allowance to the fire of 506 Army base workshop, Jabalpur.
However, till the time they do so, the Award and judgment of Hon'ble High Court stands.
11. In the instant O.A, the case projected by the applicants is that they are firemen working in the Central Ordnance Depot, Chheoki of the defence ministry getting no overtime allowance whereas firemen working in 506 Army base workshop are getting overtime allowance. The applicants claim that the firemen in both establishments under the Government of India are doing similar work, yet in the payment of overtime allowance, the applicants have been discriminated against and therefore, they are entitled to get overtime allowance as the firemen of Jabalpur. Undoubtedly, there is no mention in the counter affidavit that the duties of the firemen in both establishments are different or more onerous in one section than the other section or that there is dis-similarity to the extent that one section requires more skill 11 than the other section in the execution of the firemen job.
12. The mainstay of applicants' case is that as per Award dated 31.10.1994 of the Industrial Tribunal-cum-Labour Court, Jabalpur upheld by High Court of M.P. vide order dated 15.2.2006 in Writ petition No. 1086/2000, the firemen of 506 Army Base Workshop, Jabalpur were held entitled to overtime allowance for working beyond 44.75 hours in a week. Therefore, the applicants being firemen in Central Ordnance Depot Chheoki, Allahabad are entitled to overtime allowance on parity with their counter part in Army Base Workshop, Jabalpur, which has not been accepted by the respondent and therefore, applicants have been discriminated against resulting in violation of their rights under Articles 14 and 16 of the Constitution of India.
13. It has been argued by LC for respondents that as per Army instructions, the working hours of fire crew is 8 hours a day and as per terms of employment, accepted by the applicants, they are required to work for 48 hours a week. Notwithstanding the Army instructions, no material has been placed on record by the respondents to show that working for 48 hours a week is a term of employment held out by respondents at time of appointment and accepted by the applicants.
14. LC for respondents placed reliance upon OM dated 05.11.1973 to submit that fire brigade staff in Ordnance factories and other defence industrial establishment registered under the Factories are entitled to overtime allowances 12 since they are registered under the Factories Act whereas COD, Chheoki where the applicants work is not covered by the Factories Act and not involved in any manufacture or production process and falls under the different department of Defence Production within Ministry of Defence as per the allocation of Business Rules.
15. However, what the respondents fail to see is that the firemen in both establishments are not involved in production or manufacture process but perform similar function by way of a service. Their singular duty eventually is to douse the fire whenever it takes place in their respective establishments. The nature and quality of their job is similar and identical in all respects i.e. to put out the fire.
16. Therefore, discrimination against the applicants-firemen is writ large on the face of record. The respondents cannot escape from the Award and judgment of Labour Court and Hon'ble High Court. The relief given by the Award and upheld by the Hon'ble High Court is: . . . .firemen mentioned in Annexure 'B' shall be entitled to overtime wages from 6.11.73 upto date for the period beyond 44.75 hours in a week.
17. In the present case, the applicants and the firemen in both the establishments are having the same duties and nature of work and being similarly placed are discriminated in payment of allowances, as it violate their rights under Article 14 and 16 of the Constitution being irrational and arbitrary. The 13 settled law is that no rules can be made in violation of the provisions contained in the Constitution of India. So, the question arises and to be gone into, is, as to whether applicants being similarly placed with the firemen of Army base workshop are entitled to overtime allowance being given to the firemen of Army base workshop since 1994.
18. The issue of equal pay for equal work and employees holding same posts under the same employer requiring same pay scales to be applied is no longer res integra. We eschew reference to various authorities where parity is claimed by employees in different departments under the Union, for the reason different issues arise for consideration therein, but note those decisions where employees in the same department were sought to be placed in different scales of pay, notwithstanding the employees holding identical posts and doing same jobs. In Telecommunication Research Centre Scientific Officers (Class-I) Association vs. UOI, 1987 (1) SCC 582, the Hon'ble Apex Court on the issue of parity of pay held that for employees holding same post and doing same work and there being no ground to classify the same in two categories, the placement in different scales of pay was arbitrary. Therefore, it was directed that both groups be paid the same wages. In M.P.Singh vs. UOI, 1987(1) SCC 592 it was held by Hon'ble Apex Court that where employees enter the cadre from two different sources, if they do the same work and are similarly placed, there can be no discrimination in payment of wages.
1419. Learned counsel for applicants has referred in detail to law regarding equal work equal pay settled by the Hon'ble Apex Court in:
1) U.O.I. and Others Vs. Dinesh K.K. JT 2008 (1) SC 231 wherein it has been held as under:-
"12. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors., a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India. Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right.
13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical 15 application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association. Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.
14. In State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors. , a three-Judge Bench of this Court, dealing with the same principle, 16 opined that principle of equal pay is dependent upon the nature of work done. It cannot be judged by the mere volume of work;
there may be qualitative difference as regards reliability and responsibility. The functions may be the same but the
responsibilities do make a difference. It was held that the judgment of administrative authorities, concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court.
15. In State of Haryana & Anr. Vs. Tilak Raj & Ors., it has been observed that the principle of equal pay for equal work is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organizations or even in the same organisation. It has been reiterated that this is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. It has been emphasized that the problem about equal pay cannot be translated into a mathematical formula.
XXX XXX XXX 17. Tested on the touchstone of the afore noted broad guidelines and not cast-iron
imperatives, we are of the opinion that in the present case, on the pleadings and the 17 material placed on record by the parties in support of their respective stands, the High Court was justified in issuing the impugned directions.
18. Vide order dated 10th October, 1997 passed by the Ministry of Home Affairs in pursuance of para 7 of the Ministry of Finance, Department of Expenditure Resolution dated 30th September, 1997, it was notified that the President was pleased to rationalize the rank structure and pay scales of non gazetted cadre of central police organizations and as a result of this exercise certain ranks were to be merged and the rank structure was communicated in the order along with the revised pay scales and replacement pay scales. Copy of this order was sent to all the paramilitary forces, including the Assam Rifles.
19. On 22nd January, 1998, an office memorandum was issued by the Government of India, Ministry of Home Affairs, by way of a clarification. In the said letter, it was clarified that order dated 10th October, 1997 was equally applicable to all advertised categories. In the said letter, direction with regard to the re-designation of the three posts including Head Constable (RM) as ASI in central paramilitary forces along with their replacement pay scales were also ordered.
20. It appears that the disparity in rank and pay in various central paramilitary forces could not be resolved and on 24th April, 2001, the Director General Assam Rifles submitted a report to the Government with 18 regard to the progress on pay anomaly cases.
Para 4 of the said letter is of some relevance to the issue at hand and it reads as follows: "Rank and pay of Technical Cadre Person RM. Ptmn, Pharma, and Compounder of AR with the same intake QR for remounts are given the rank of HAV wherein they are counterparts in CPOs are given ASI. The MHA had ordered to submit proposal in directing cadre to cadre comparison with BSF where the rank of ASI is available in other tech and also along with fin implication. The proposal alongwith fin implication has been submitted to MHA and the case is lying with MOF for approval.
21. Having failed to receive any positive response from the Government, one of the Radio Mechanics issued a Notice of Demand to the Ministry of Home Affairs and Director General of Assam Rifles, inter alia, praying for giving effect to office order dated 10th October, 1997 and office memorandum dated 22nd January, 1998. Vide order dated 26th December, 2001, the Ministry of Home Affairs informed the Director General of Assam Rifles that his proposal had been examined in consultation with Ministry of Finance and it was found that there was no point for comparison of grades and scales of pay for such posts across various central paramilitary forces. 22. It was stated that the proposed upgradation may disturb relativities of various trades and grades within the Assam Rifles and there was no functional justification for upgrading these posts. It is evident that on rejection of the 19 recommendation made by the Director General of the Force, the respondent herein was left with no option but to approach the High Court for redressal of his grievance.
XXXX XXX XXXX 24. From the afore-extracted paragraphs of the counter affidavit and the resume of
correspondence referred to above, it clearly stands admitted by the petitioners herein that: (i) all the paramilitary forces, including Assam Rifles are at par with each other and (ii) there was apparent disparity in the pay scales of the personnel of Assam Rifles with their counterparts in other central paramilitary forces. In order to rectify this disparity, Director General Assam Rifles, petitioner No.2 herein, vide his letter dated 18th February, 1998 had, in fact, taken up the grievance of the respondent with the Ministry of Home Affairs, inter alia recommending re-designation of Havildar (RM) Gd.-I and II of Assam Rifles as Warrant Officer and for replacement of pay scale of Rs.4000-100-6000 to bring them at par with their counterparts in other central police organization.
25. However, the Ministry of Home Affairs vide letter dated 3rd March, 1998 while accepting the said proposal had recommended re-designation of HAV/RM as Warrant Officer but subject to the condition that the pre- revised and revised pay scales of HAV/RM in other paramilitary forces were identical to the pay scales of Head Constable (RM) in CRFP and BSF. Manifestly, in the instant case, the differentiation in the pay scales of the two 20 paramilitary forces is sought to be achieved not on the ground of dissimilarity of academic qualification or the nature of duties and responsibilities but only on the ground that there was _initial anomaly_ in the Fourth Central Pay Commission Report. The counter affidavit does not even attempt to explain how the case of the HAV/RM in Assam Rifles is different from that of Radio Mechanics in other central paramilitary forces.
26. In the present case, therefore, in the light of the admitted factual position, the question of examination of external comparisons, internal relativities and other factors, to be kept in view for job evaluation, considered to be a complex issue to be studied only by expert bodies, does not arise. As a necessary corollary, the issue as to whether there is a complete or wholesale identity between the said paramilitary forces, does not survive for consideration.
27. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the apparent disparity and anomaly in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in pre- revised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary 21 forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution.
28. On a conspectus of the factual scenario noted above, we do not find any infirmity in the impugned directions given by the High Court, warranting interference. There is no merit in this appeal and it is dismissed accordingly with costs".
2) K.T. Verappa Vs. State of Karnataka 2006 (9) SCC 406 "13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S) 363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is 22 also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.
14. In S.B. Vohra case(2004) 2 SCC 150 : 2004 SCC (L&S) 363 this Court dealing with the fixation of pay scales of officers of the High Court of Delhi (Assistant Registrars) has held that the fixation of pay scale is within the exclusive domain of the Chief Justice, subject to approval of President/Governor of the State and the matter should either be examined by an expert body or in its absence by the Chief Justice and the Central/State Government should attend to the suggestions of the Chief Justice with reasonable promptitude so as to satisfy the test of Article 14 of the Constitution of India. Further, it is observed that financial implications vis-a- vis effect of grant of a particular scale of pay may not always be a sufficient reason and differences should be mutually discussed and tried to be solved.
15. In the present cases, in compliance with the judgment of the Division Bench of the High Court, the Vice-Chancellor of the Mysore University constituted a committee headed by Shri Hiriyanna. The said Committee, in its report dated 8-6-1991, has recorded the observations that the details of the pay scales assigned by the Muddappa Committee, the Manjunath Committee, the Acharya 23 Committee, the Gopala Reddy Committee as also the pay scales given effect to from 1-1-1977 and the claims of the appellants, on individual basis, could perhaps have been attended to by the University itself after the Muddappa Committee made its recommendations. The Vice-Chancellor and the Registrar of the Mysore University, while appearing before the Division Bench of the Karnataka High Court in CCs Nos. 84 to 103 of 1992 in compliance with the order dated 16-4- 1992 had brought to the notice of the Bench that the direction issued by the learned Single Judge in WAs Nos. 2220-39 of 1989 dated 18-41990 and 29-1-1991 had already been complied with and arrears of salary had been paid to the employees of the University, who filed the said writ petitions. Thereafter, the respondent University submitted certain proposed amendments to the statute and the same were sent to the State Government for approval. The State Government, for the reasons best known to it, till date has not been able to state any good reason as to why the amendment of the statute as proposed by the University in regard to the fixation of the pay scales of its employees could not have been approved by the competent authority. The Vice-Chancellor in its affidavit dated 25-1-2000 filed in Writ Appeals Nos. 7007-55 of 1999 has categorically stated that the respondent University, in its meeting held on 17-4-1999, decided to comply with the orders of the Court and also to extend the benefit of the revised pay scale with effect from 1-1-1977 24 to those employees who are eligible for such benefits and have not gone to the Court. This decision was taken on the representation submitted by the appellants.
16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21-6-1989 recorded by the learned Single Judge in WPs Nos. 21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time.
17. Shri Sobha Nambisan, Principal Secretary to Government, Education Department (Higher Education), Government of Karnataka, in his latest affidavit dated 6-3-2006 filed in these proceedings has stated that after 1-1- 1977, the Government of Karnataka has revised 25 the pay scales of employees of the State Government in 1982, 1987, 1994 and 1999. From 1-1-1977 to 2006, the dearness allowance, house rent allowance and other allowances have also been revised. The revision of pay scales, dearness allowance, house rent allowance and other allowances extended to the State Government employees were also extended to the University employees from time to time. Moreover, a large number of Mysore University employees were promoted in terms of the time-bound promotion schemes of 10 years, 15 years and 20 years in terms of the government orders issued from time to time. The additional financial implications of Rs 60 lakhs will have to be borne by the State Government. He has categorically stated that the revision of pay scales extended to the employees of the State Government time and again will also be extended to all the University employees.
18. In our view, the impugned judgment of the High Court in WAs Nos. 7007-55 of 1999 dated 8-3-2000 is not legally sustainable. It is, accordingly, quashed and set aside.
19. Consequently, the appeals are allowed and the order of the learned Single Judge dated 29-10-1998 in Writ Petitions Nos. 11755 of 1994, CWs Nos. 3400-23 of 1993, 37901-04 of 1992, 35996 of 1992, 3426-43 of 1993 and 27004 of 1992 is restored and maintained. The respondents-the State of Karnataka and the University of Mysore, both are directed to extend the pay scales of 1977 and subsequent revisions to the appellants and pay the difference of monetary benefits to them 26 within four months from the date of this order. In the facts and circumstances of the case, the parties are left to their own costs".
20. The settled principle of law in aforementioned case is that identically placed persons, including the applicant, could have been given the same benefits, which would have avoided not only unnecessary litigation, cost and heart burning is also an effective reply to the contention of respondent-State that these applicants did not approach the court when the Award and judgment was announced in Jabalpur and therefore, they are not entitled to any relief. (Read with advantage K.I.Shephard v/s UOI, 1987 SCC (L&S) 438 and )
21. Reference may be made to the Order of Central Administrative Tribunal, Delhi in OA No.164/2009 in the case of S.R. Dheer and Others Vs. U.O.I. & Others decided on 19.02.2009 held as under:-
"51. In the above view of the matter regarding the parity of pay scale in 5th CPC in the wake of an admitted fact of the historical parity between the CSS/CSSS with counterparts in CAT, a final decision is awaited for grant of NFSG grade of Rs.8000-13500 notionally and actually to the employees of the Tribunal. However, as this is not the issue before us, except reiterating in law their demand, the issue of historical parity between the PSs/SOs of CAT and on the other hand SOs/PSs of CSS/CSSS is no more res integra and once accepted by the government and recommended by 6th CPC, the aforesaid recommendations contained in paragraphs 3.1.9 and 7.32.15 having been 27 accepted by the Government, the stand now taken by the respondents that what is applicable to the applicants in the present OA is para 3.1.14 of the recommendations of the 6th CPC is absolutely misconceived. It is pertinent to note that this para applies to non-secretariat offices and to those for whom there is no historical parity with CSS/CSSS and in favour of whom a criteria of recommendations has not been laid down in the 6th CPC recommendations. On a juxtaposition, 6th CPC while making its recommendations in para 7.32.15 as to cadre structure of higher pay scale in CAT reiterated that Assistants and Stenographers in CAT have demanded pay scales at par with their counterparts in CSS/CSSS and as the Commission has already recommended parity between the similarly placed posts in field offices and Secretariat, no separate recommendation has been made. The only logical and rationale inference to be drawn is that whatever has been recommended in para 3.1.9 is to be applied mutatis mutandis to the employees of the CAT on the condition precedent being fulfilled, which is establishment of historical parity with CSS/CSSS. The recommendations contained in para 3.1.14 of 6th CPC Report where the field organizations and nonsecretariat organizations have been recommended the pay scale are not at all applicable to the employees of the CAT, as a specific recommendation made in paragraph 7.32.15 Commission having recommended parity between the similarly placed posts in field offices and secretariat the instant demand has been fulfilled. It is trite that when there is a specific recommendation made as transpired 28 from para 3.1.9 as to parity with pay scale of CSS/CSSS structure the asterisk (*) clearly shows that even to the non-secretariat offices and organizations being carved out as an exception to the recommendations contained in para 3.1.14 is that those organizations which are not exhaustive but includes departments and organization which have had a historical parity the pay scale would be at par with CSS/CSSS. It is trite that under the principle of interpretation that in case of interpretation of a service rule, if two views are possible then the rule has to be interpreted with the practice followed in the department for long time as held in Shailendra Dania & Ors. vs. S.P. Dubey & Ors., 2007 (2) SCC (L&S) 202, a marginal note with a provision is an integral part of it and being an exception in the instant case as an asterisk (*) to para 3.1.9, the same has applicability to all field offices and non-secretariat organizations, all departments where there has been historical parity with the pay scale of their counterparts in CSS/CSSS. We cannot read para 3.1.14 in isolation of para 3.1.9 and 7.32.15 where both the recommendations having been accepted by the Government, only applying para 3.1.14 to the exclusion of 3.1.9 would amount to approbating and reprobating simultaneously, as a conscious and well taken decision when transformed into an affidavit of the Government before the Ernakulam Bench, an admission to acceptance of parity and acceptance also of established parity as a historical background leaves no doubt in our mind that there has been a historical parity of SOs/PSs in CAT with their 29 counterparts in CSS/CSSS. They cannot now, as a contradictory stand, deny the same as it would not only be unfair but also is a misuse of their discretionary power which is to be exercised by an administrative authority judiciously after balancing all the relevant factors as ruled by the Apex Court in Union of India vs. Kuldip Singh, 2004 (2) SCC 590. A discretion vested in the administrative authority is neither unfettered nor absolute. It is to be exercised in consonance with the rights of a government employee and Constitution of India. A consideration worth in law is one, which thinks over on active application of mind all the relevant consideration and factors as ruled by the Apex Court in Bhikubhai Patel (supra). As a model employer just to deprive the applicants their rights and legitimate dues without any justifiable reasons and on misreading of their CSSS Revised Pay Rules, 2008, irrelevant considerations have been grounded to deprive the applicants the requisite pay scales on established historical parity with those of their counterparts in CSS/CSSS. Learned counsel for the respondents relied upon the decision of High Court in Mohinder Pal Singh (supra) and in M.V.R. Rao (supra) by a Larger Bench of this Tribunal. In this regard it is pertinent to note that this issue of parity of CAT employees with CSS/CSSS has been dealt with by this Tribunal in S.K. Sareen s case (supra) which, on affirmation from the High Court, and also rejection of SLP, on implementation by the respondents not only attained finality but also is an admission to the effect by the 30 respondents that the SOs/PSs of CAT are maintaining historical parity with those of their counterparts in CSS/CSSS. It is worthwhile to note that there is even a finding recorded that the duties and functional requirements of the CAT employees are more onerous than their counterparts in CSS/CSSS, which has not been overturned by any dicta. A judicial dicta when holds the field and the arena in which it operates, it is impermissible in law to the administrative authorities to infiltrate it as ruled by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327. The Apex Court has also ruled in Dhampur Sugar Mill v. State of Uttranchal, 2007 (11) SCALE 374 that when a public authority acts with oblique motive, bad faith or takes into account extraneous or irrelevant consideration, the exercise has to be held as not in accordance with law.
52. In the above view of the matter the contention that the Government has not accepted the claim of the applicants as to the parity with CSS/CSSS is founded on a ground and justification, which has been misconceived by them and wrongly applied. Such a consideration cannot be a consideration worth in law.
53. In the matter of pay scale equation though the prerogative lies with the Government but any action taken especially when such a recommendation covers the claim of the applicants and accepted by the Government, no reasonable justification has come forth, which would deprive the applicants the grant of identical pay scale. Had there been a case where recommendations having been accepted by 31 the Government in its discretion, the applicants would have no indefeasible right to claim the pay scale. One of the points raised is financial constraint in accord of benefits, which as a trite law, has not been found to be a valid defence by the Government, as a right of an employee cannot be defeated on this technical issue. In the matter of parity of pay scale, financial constraint cannot be a defence as ruled by the Apex Court in Union of India vs. Atonomic Engery Workers Staff Union, 2005 (1) ATJ (HC) (Bombay) 92.
54. As regards opening of flood gate litigation and administrative chaos, it is held to be no ground to take away the valuable right of a person under the Constitution by the Apex Court in Coal India Ltd vs. Saroj Kumar Mishra, 2008 (2) SCC (L&S) 321. In G.S. Uppal (supra), financial constraints have not been found to be good ground on established implementation of doctrine of equal pay for equal work.
55. A discriminatory and contradictory stand is antithesis to the fairness in law. As the issue of NFSG of RS.8000-13500 to the OSs in case of CBI, a non-secretariat office at par with CSS/CSSS, decision in S.C. Karmakar (supra) was affirmed by the High Court of Delhi. Even the decision of the Tribunal in the case of R&AW Department has been implemented by the Government by grant of pay scale/NFSG to the concerned SOs, by order dated 19.01.2009 and also the SOs/PSs in AFHQ were allowed the pay scale on 25.09.2008. This clearly shows that the 6th CPC recommendations in para 3.1.9 have been adhered to not only in the case of SOs/PSs of the CSS/CSSS but also in the case of SO/PSs 32 in other Organisations, who have had historical parity. As such, exclusion of the CAT employees and not meeting out the same treatment in respect of Grade Pay without any intelligible differentia having reasonable nexus with the object sought to be achieved, is an unreasonable classification and an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India.
56. In the light of the discussions made above, issue no. (i) framed by us is answered to the extent that as in the matter of grant of pay scale there has been an unreasonableness and accepted recommendations having not been followed and applied to the applicants at par with their counterparts in CSS/CSSS, an exception has been carved out as per the trite law to interfere with the decision of the Government in judicial review by us.
As far as the issue No. (ii) is concerned, we have already concluded that the SOs/PSs of CAT have always had historical parity with their counterparts in CSS/CSSS.
Accordingly the issue no. (iii) is answered on the basis of the above observations that such an application is misconceived, misplaced and contrary to law.
57. Resultantly, for the foregoing reasons, we have no hesitation to hold that the decision of the Government to deny Grade Pay of Rs.4800/- in PB-2 to the PSs and SOs of the CAT initially and Grade Pay of Rs.5400/- in PB-3 on completion of four years service in the grade is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India, since 33 they are having established historical parity with their counterparts in CSS/CSSS and, therefore, applicants are entitled to these Pay Bands with Grade Pay. The interim order is made absolute. The difference in arrears of pay shall be disbursed to the applicants within a period of one month from the date of receipt of a copy of this order. The OA is accordingly allowed to the aforesaid extent."
22. In the present case, there is no pleading in the counter affidavit that the technical and educational qualifications of the firemen in different departments under the aegis of Government of India were different or they were doing dis- similar jobs involving different and onerous skills. Of course, employees in the same cadre can certainly be placed in different pay scales but that would be, if it is shown that one set of employees has higher technical or education qualifications or performs more onerous duties vis- à-vis the other or the like, which is not the case in the present O.A, at least no such case has been pleaded. It is a settled law that where there is complete parity it would be highly discriminatory to treat employees differently merely on account of the two coming from two different sources.
23. Holding so, in favour of the applicants, I find that no plausible or justifiable plea has been put up by the respondents to deny the applicants the benefit of overtime allowance. The applicants as firemen in the COD, Allahabad perform the same duties as firemen in 605 Army base worshop of the respondents. Nothing has been alleged or shown that the firemen in different departments of the 34 respondents are performing onerous duties or for any reason they should be shown as a different category viz. a viz. the applicants. One cannot accept that the same post can have two different rules for allowance to be paid for overtime work, as in present case, simply on the ground of the firemen working in different department of the defence establishment when there is no material on record to show that they are doing different work or more onerous. Thus, apart from the principle that employees holding same posts and doing same duties cannot be discriminated in matters pertaining to categorisation and wages with reference to the source of appointment, I find no justifiable cause to treat the firemen working in different departments of the defence establishment as forming a different and distinct categories.
24. A faint argument was made by respondents that in exercise of the power of judicial review the Tribunal cannot direct the respondents to frame statutory rules or amend the existing statutory rules framed under Article 309 in a specific manner so as to alter the conditions of service of the civil servants. There is no dispute with this proposition of law. The Tribunal has no intention to direct the respondents to frame rules in a particular manner. That does not prevent the Tribunal from examining the issue of discrimination and consequently quash the offending provisions of any statute, particularly the delegated legislation, or to issue a prerogative direction to accord similar treatment to equally circumstanced categories to prevent or even abort a discriminatory action.
3525. The applicants in the instant case are legally entitled to the similar treatment and parity in service conditions, granted to similarly situated persons, in the similar circumstances, as envisaged under Articles 14 and 16 of the Constitution of India, in view of the ratio of law laid down by Hon‟ble Apex Court in case of Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ, 120 wherein, it was ruled that the concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the Doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. It was also held that the administrative action should be just on the test of 'fair play' and reasonableness.
26. Thus, seen from any angle, I of the firm view that the applicants are also entitled to overtime allowance similar to their counterparts in 506 Army base workshop, Jabalpur.
27. Question of limitation was raised by LC for respondents and arguing that the O.A is barred by period of limitation as envisaged by Section 21 of the Act. There is a delay in claiming parity with the firemen of Jabalpur for which cause of action arose in the year 1999 and the applicants first 36 agitated this issue in the year 2011 when they filed OA before the Tribunal.
28. On the other hand, LC for applicants submitted that the cause of action is based on "Recurring/successive wrongs" which occur periodically; each wrong giving rise to a distinct and separate cause of action and in the present case, denial of the pay scale to the applicants is a recurring wrong and therefore the present O.A. is not barred by period of limitation.
29. On this aspect, learned counsel for applicants has referred to M.R.Gupta v. Union of India, (1995) 5 SCC 628, and Union of India and others v. Tarsem Singh, (2008) 8 SCC 648. In M.R.Gupta v. Union of India (supra), it has been held by the Hon'ble Supreme Court that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. In Union of India and others v. Tarsem Singh (supra), it has been observed by the Hon'ble Supreme Court that the principles underlying continuing wrongs and recurring/ successive wrongs have been applied to service law disputes. A "continuing wrong"
refers to a single wrongful act which causes a continuing injury. "Recurring/successive wrongs"
are those which occur periodically; each wrong giving rise to a distinct and separate cause of action. A belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an 37 application to the Administrative Tribunal). One of the exceptions to be said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury.
30. And in H.S.Shekhwat v/s The Union of India, 2004 (1) Administrative Total Judgments 45, the Central Administrative Tribunal, Jaipur held that the grant of higher scale of pay give rise to continuing cause of action and cannot be considered as hit by limitation.
31. The last word on this facet is the law laid down by Hon'ble Apex Court in M.R.Gupta v/s Union of India, 1995 SCC (5) 628, wherein the dispute was fixation of pay at the time of joining as per the FR 22-C with addition of one increment as per the rules, which was not allowed by the department. Hon'ble Apex Court held in that case as under:-
"The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This 38 right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished."
32. In the instant OA the dispute is grant of overtime allowance at par with the firemen of Jabalpur. It was further held in M.R. Gupta (supra) that "The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential 39 relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
33. Hence, their claim is well within the limitation and there is no delay for these reasons. It is correct to say that it is a continuing/recurring cause of action and the ratio of MR Gupta judgment is applicable to the OA. The applicants have filed the OA within the limitation period as stated above.
34. However, in this case, the applicants of C.O.D, Allahabad will be entitled for the benefit partly, as prayed for in the OA for the reasons that applicants have first taken legal recourse in the year 2009 when they filed the first O.A. and would be entitled to be paid overtime allowance in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, save for a period of three prior to the filing of the first A.O. in the year 2009.
35. I may refer to State of U. P and ors v. Arvind Kumar Srivastava and ors, (2015) 1 SCC 347, 40 wherein the Hon'ble Apex Court explained the principle of equal treatment:-
"23. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence. Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as 41 fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence." (Read with advantage Premchand Somchand Shah vs. Union of India, (1991) 2 SCC 48, State of U.P., vs. Dayanand Chakrawarty, (2013) 7 SCC 595 and Virendra Krishna Mishra v. Union of India, (2015) 2 SCC
712).
36. In the circumstances and for the aforesaid reasons, the OA is allowed and the order is passed in this OA as under:-
42I. Respondents are directed to take the required sanction and administrative action to pay allowance for the overtime work put in by the applicants similar at par with the firemen of 506 Army base workshop, Jabalpur and which applicants were also the parties in the OA No. 324/2009 titled No. F/98 Fireman Dipender Singh and others v/s Union of India and others decided on 02.04.2009 by the Central Administrative Tribunal, Allahabad except for the arrears, which will be admissible from the date three years prior to the filing of the first OA No. 324/2009 aforementioned in 2009.
The applicants who may have retired will also be entitled for the overtime allowance due to them, as per, the rules.
II. The respondents are directed to carry out the aforesaid exercise within a period of four months from the date of receipt of a certified copy of this order.
III. It would be appropriate to clearly mention in the order that this judgment will be applicable for the applicants of this OA taking into consideration the facts of this case due to which this judgment should not be taken as a precedent to apply it for other cases.
37. The OA stands disposed of in terms of the directions above. No costs.
(Rakesh Sagar Jain) Member (J) /Shashi/