Central Administrative Tribunal - Delhi
Krishna Raja P vs Union Of India Through on 25 August, 2015
Central Administrative Tribunal Principal Bench OA No. 382/2006 MA No. 744/2015 With OA No. 2682/2012 Order Reserved on: 14.05.2015 Order Pronounced on: 25.08.2015 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. B.K. Sinha, Member (A) OA No. 382/2006 1. Krishna Raja P., Block No. 68/4A, Sector II, Kali Bari Marg, New Delhi-110001 2. S.D. Madan, House No. 81, Sector 12, Plot No.11 Ashirwad Apartments, Dwarka, New Delhi-110045 3. S.K. Sharma, House No. 82, Village Dhaka, Delhi-110009 4. M. Sreenivasan, House No. 80/A, Pocket A-3, Mayur Vihar, Phase-III, Delhi-110096 5. C.L. Narwaria, RZC-50, Dabri Extension (East), New Delhi-1100 45 6. P.K. Dey, F/1089, Chittaranjan Park, New Delhi-1100 19 7. A.Krishna Kumar, B-50, Moti Bagh I, New Delhi-110021 8. M.L. Dhingra, E/31, Shivaji Road, Adarsh Nagar, Delhi-110033 9. A.C. Sethumadhavan, F-164, Nauroji Nagar, New Delhi-110029 10. K.L. Sharma, Flat No. 171/1, Sadiq Nagar, New Delhi-110049 11. Shailender Singh, Flat No. 155, Type-IV, North West, Moti Bagh, New Delhi-110021 12. R.K. Goswami, DB-61/C, Hari Nagar, Clock Tower, New Delhi-1100 64 13. M.L. Suyal, D-I/A-11, Lodhi Colony, New Delhi-1100 03 14. P.R. Verma, Sector II/123, Type III, Sadiq Nagar, New Delhi-110049 15. SL Malhotra, Flat No. 170, Gita Apartments, Gita Colony, Delhi-1100 31 16. Dipak Kumar De, House No.31, BM Saha Road, Post: Hind Motor, Dist: Hoogly (West Bengal) 17. AK Raina, House No. 146, Lane No.2, Saraswathi Vihar, (Bhind: Anusudha Hr. Sec. School) Bunai, PO: Muthi, Jammu (J&K) 18. K.L. Acharya, 30/31, Tulsi Colony, Near: Kayalana Chowk, Jodhpur (Rajasthan) 19. MP Thampi, Risa Bhavan, Imbusaka, Nongthymmai, Shillong-14 (Meghalaya) 20. C.K. Sengupta, House of Shri B.Dutta, Old DC Bunglow Road, Dibrugarh (Assam) -Applicants (By Advocate: Shri M.S. Ramaligam) VERSUS Union of India through 1. The Secretary (RAW) Cabinet Secretariat, Room No. 7, Bikaner House (Annexe) Shahjahan Road, New Delhi-110011 2. Under Secretary (Personnel) Cabinet Secretariat, Room No. 7, Bikaner House (Annexe) Shahjahan Road, New Delhi-110011 3. Secretary, Ministry of Finance, (Department of Expenditure) New Delhi -Respondents (By Advocate: Shri T.C. Gupta) OA No. 2682/2012 A.K. Raina, Qtr. No. 571, Sector III, R.K. Puram, New Delhi-110022 -Applicant (By Advocate: Shri C.Bheemanna) VERSUS Union of India (Through) The Secretary to the Govt. of India, Cabinet Secretariat (RAW) Bikaner House Annexe, Shahjahan Road, New Delhi-110011 -Respondent (By Advocate: Shri R.N. Singh) ORDER Dr. B.K. Sinha, Member (A):
These two cases relate to the same subject matter and seek the same relief based upon similar facts. They have, therefore, been heard together and are being disposed of by this common order. For the sake of convenience, OA No. 382/2006 has been treated as the lead case.
2. Despite seeming bulk of the case, the issue is relatively short whether the applicants are entitled to the benefit of upgraded pay scale of Rs. 6500-10500/- on notional basis w.e.f. 1.1.1996 with actual payments being made from 19.02.2003.
3. The facts of the case are not disputed. The applicants are Accountants in Research and Analysis Wing (RAW, for short) under the Cabinet Secretariat. They have sought the benefit of revised pay scale of Rs. 6500-10500/- as has been granted to the Organized Accounts cadres of other services in terms of OM dated 28.02.2003 on the ground that they are part of the organized Accounts cadres of RAW in Cabinet Secretariat and that pay parity ought to have been maintained with other Accounts Department in the Government of India even after the implementation of the recommendations of the Sixth Pay Commission. The basic grievance of the applicants is that they were in the scale of Rs. 5500-9000 while in other accounts department, the same scale had been revised to Rs. 6500-10500 vide OM dated 28.02.2003.
4. The applicants preferred a representation dated 21.03.2003 to this effect which was rejected vide order dated 23.09.2005 on the ground that there can be no parity in pay scales between the isolated posts and the posts with similar pay scales in the organized Accounts cadre where a hierarchy exists.
5. The applicants had filed OA No. 382/2006 which was considered and decided on 14.02.2006 by this Tribunal. The claim of the applicant was rejected vide afore decision principally on two grounds: (i) the applicants had failed to prove the historical parity which they had claimed vis-`-vis other organized Accounts cadres; and (ii) allocation of pay scales is a matter of expert body to decide which have to go into the matter in great depth and have full picture before making any recommendation.
6. The applicants had moved a Writ Petition bearing number WP (C) 17546-65/2006 which was decided on 24.05.2012 wherein the Honble High Court of Delhi while holding that the applicants did constitute an organized Accounts cadres had further directed:-
7. Consequently, while we hold that the accounts cadre in the research and Analysis Wing of the Cabinet Secretariat is an organized cadre, we remit the matter to the Tribunal on the aspect as to whether the petitioners are entitled to the pay scale 6500-10500 or not upon a consideration of the OM dated 28.02.2003 and other relevant material which is already on record. The Tribunal while deciding the matter shall also consider its decision in the case of J.R. Chobedar v. Union of Indian & Ors. in OA No. 208/1997 decided on 24.02.2004.
7. We have heard the learned counsel appearing for the parties and have also considered the pleadings with such other documents that have been submitted and the oral submissions of the parties as well.
8. The issue for consideration has already been stated in the opening paragraph of this order. The applicants submit that they were in the scale of Rs.1640-60-2300-EB-75-2900 (4th Pay Commission). Subsequently, after the implementation of the 5th CPC, they were placed in the scale of Rs. 5500-9000. The dispute is rooted to the OM dated 28.02.2003 which states that the respondents revised the pay scales of organized cadres in the following manner:-
Designation Pay scale prior to 1.1.96 Existing pay scale Pay scale to be extended notionally w.e.f. 1.1.1996 with actual payments being made prospectively. Auditor/Accountant 1200-30-1560-40-2040 4000-100-6000 4500-125-7000 Sr. Auditor/Sr. Accountant 1400-40-1600-50-2300-60-2600 5000-150-8000 5500-175-9000 Section Officer 1640-60-2600-75-2900 5500-175-9000 6500-200-10500 Asstt. Audit Officer/Asstt. Accounts Officer 2000-60-2300-75-3200 6500-10500 7450-225-11500
9. Further the respondents vide OM dated 04.03.2003 have clarified OM dated 28.02.2003 to the extent that the post of Junior Accounts Officer in Central Civil Accounts Service is equivalent to Section Officers and therefore, the pay scale mentioned at SI. No. 3 of the OM dated 28.02.2003 is applicable to Junior Accounts Officer in Central Civil Accounts Service. The applicants have further sought strength from the decision of this Tribunal in OA No. 208/1997 dated 24.02.2004 (JR Chobedar Vs. Union of India & Ors.). This decision has been upheld by the Honble High Court of Delhi vide order dated 25.01.2005 in WP (C) No. 20065-67/20044. The simple argument of the applicants is that their cases stand on a better footing as compared to J.R. Chobedars (supra); if Chobedar can get the benefit of equivalence of pay, there is no reason why the applicants should not. Summarizing his arguments, the learned counsel for the applicants submits that the applicants are seeking revised scale of Rs. 6500-10500 vide OM dated 28.02.2003 and the replacement scale thereof in 6th CPC.
10. The learned counsel for the applicants has also drawn our attention to the Recruitment Rules governing their cadre and submitted that the accounts cadre of RAW (Cabinet Secretariat) has always enjoyed historical parity with the other organized Accounts services. Moreover, Accountants are recruited from several sources, including re-employment of ex-servicemen holding equivalent post, deputation/absorption of officers of Central Government holding analogous post on regular basis, or with five years/eight regular service in the pay scale of Rs.5500-9000/4000-6000 respectively and who have undergone training in ISTM or equivalent and possess three years experience of cash, accounts, budget work. It is the case of the applicants that they come in equivalent category. The only reason stated by the Finance Department for refusal in the impugned OM dated 23.09.2005 was that they did not belong to organized accounts services, which have now been held otherwise by the Honble High Court in WP(C) No. 17546-65/2006. The applicants have further submitted that they are merely seeking enforcement of their rights without discrimination. Every department has its own core activities. Even the Cabinet Secretariat has its different cadre. The applicants have further submitted that the recruitment rules clearly provide as to how one enters the service and as such, there can be no discrimination once one has entered and has served for a number of years, by making changes in the recruitment rules. The persons, who were recruited under the earlier rules, would continue to get the same treatment and now it cannot be discriminated against, as the same would amount to hostile discrimination.
11. Drawing attention to the Tribunal to an advertisement by Telecom Disputes Settlement and Appellate Tribunal dated 25.03.2011, the applicants have submitted that any of the qualifications i.e. a pass in SAS or equivalent examination conducted by any of the organized accounts departments of the Central Government or (ii) successful completion of training in Cash and Accounts work in ISTM or equivalent and experience in Cash Accounts and Budget work, continue to be adhered to. The learned counsel for the applicants further submitted that the organizations are heavily dominated by those who have passed the SAS and, therefore, they have designed the advertisement and rules in such a way that they get preference over others. Citing an example, they have submitted that while defining their duties, SAS have given greater prominence to their own duties as compared to the applicants.
12. In OA No. 2682/2012, learned counsel for the applicant has submitted that his case was on a slightly different footing in the sense that after implementation of the Sixth Central Pay Commission, the applicant was granted the benefit of pay scale of Accounts Officer in PB-2 (9300-34800 + GP 5400) as applicable to the Accounts officer in the organized Accounts cadre but the same benefit was withdrawn on the ground that he was not having the SAS qualifications. He has further submitted that he had been recruited when SAS did not exist as a qualification and has also drawn our attention to the existing recruitment rules in respect of Accountants of RAW wherein 20% of the posts are to be filled by deputation or absorption of officers of Central Government who have qualified the Subordinate Accounts Service (SAS) Examination from any Organized Accounts Service and holding analogous post on regular basis or with 8 years regular service in the pay scale of Rs. 4000-6000/-, whereas remaining 80% of the posts stand to be filled up by deputation or absorption of the officers of the Central Government who have undergone training in Cash and Accounts work in ISTM or equivalent and possess three years experience of cash, accounts and budget work and holding analogous posts on regular basis, or with eight years regular service in the pay scale of Rs. 4000-6000/- (pre-revised). For recruitment of Accountants, both are basic qualifications and there is no amendment therein.
13. Learned counsel for the respondents vehemently opposed the plea of the applicants. He submitted that the Honble High Court has already decided the issue that the applicants belong to organized Accounts cadre. The Honble Judges might as well have decided the case in favour of the applicants once having sustained their inclusion in organized accounts cadre. However, the Honble Judges have deliberately omitted to do so because a number of other issues are also related. The learned counsel for the respondents further pointed out the difference in rules and practices prevalent amongst the organized services themselves and submitted that such differences exist as per their respective classification. In the instant case, the applicants are non Gazetted while they lay a claim to grant the benefit of pay scale of Gazetted post of Astt. Audit Officer/Astt. Accounts Officer of another Group. Their respective recruitment rules and conditions of eligibility as also the duties and functions and their structure and classifications are different. Learned counsel for the respondents submitted that had the issue been only related to the status of the applicants whether they belong to organized or unorganized cadre, the matter would have been decided at the level of the Honble High Court itself. The fact that it has been remitted to this Tribunal indicates that the Honble High Court wants the Tribunal to go into depth and decide the matter on the basis of other issues that have been generated.
14. We start by looking at the claim of the historical parity that has been submitted by the applicant, which is being reproduced as below:-
Comparative Statement of Pay Scales of Accounts Cadre of R&AW and Organized Accounts Cadre/Railways and some other Government Departments. Date/Period Pay scale of S.Os (Accounts) of Railways Pay scale of SOs (Accounts) or Organized Accounts Cadres Pay scale of JAO in some other Govt. Departments Pay scale of Accountant of R&AW Prior to 01.01.1973 275-15-425-EB-20-575 275-15-425-EB-20-575 275-15-425-EB-20-575 275-15-425-EB-20-575 01.01.1973 (3rd Pay Commission) 500-20-700-EB-25-900 500-20-700-EB-25-900 500-20-700-EB-25-900 500-20-700-EB-25-900 01.01.1986 (4th Pay Commission) 1640-60-2300-EB-75-2900 1640-60-2300-EB-75-2900 1640-60-2300-EB-75-2900 1640-60-2300-75-2900 01.01.1996 (5th Pay Commission) 5500-175-9000 5500-175-9000 5500-175-9000 5500-175-9000 Now revised new scale on notional basis from 01.01.1996 and arrears from 19.02.2003 6500-200-10500 6500-200-10500 6500-200-10500 Not revised
15. From the perusal of this table, it does appear that there had been some historical parity in respect of the Accountant of R&AW Accounts cadre vis-`-vis pay scales of SOs (Accounts) of Railways, SOs (Accounts) or Organized Accounts cadres and JAO in some other Government departments till the 5th Pay Commission. The equilibrium appears to have been disturbed vide OM dated 28.02.2003. However, as pointed out by the learned counsel for the respondents, there is no documentary evidence to prove that the parity was traditionally being maintained on the implementation of the recommendations of the Central Pay Commission (3rd, 4th and 5th CPC). The benefit of upgraded pay scale has been granted to personnel of Organized Accounts cadre and is not admissible to others. Equivalence of pay will have to be decided in respect to method of recruitment, qualifications, the duties being handled by them, level of responsibilities, the organizational and hierarchical structure, output etc. Unless there were to be parity in respect of the above factors, no equivalence in respect of pay scales could be sought as a matter of right.
16. Now, we go into the method of recruitment of Accounts cadre of R&AW (Cabinet Secretariat), which are reproduced as follows:-
Method of Recruitment to the posts in the Secretarial, Ministerial and Accounts Cadre of the Research and Analysis ACCOUNTS CADRE SI. No. Grade Designation Method of filing the post Qualification for direct recruitment Qualification and basis of promotions for direct entrants Conditions of eligibility to the Limited Departmental Competitive Examination Age limit Minimum qualification Grade from which promotion is to be made Minimum length of service to the Grade as shown in Column 7 Basis of promotion Grade to which the officer should belong Length of service in the Grade shown in Column 10 1 2 3 4 5 6 7 8 9 10 11
12.
Grade-I Under Secretary (IF)/Under Secretary (Cash & Accounts) (*) 100% by promotion failing which by deputation/absorption Grade II/Accounts officer 7 (seven) years Selection by merit
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-
13. Grade-II Accounts Officer 100% by promotion failing which by deputation/absorption and failing both by re-employment of retired Government servants.
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-
Grade-III/Accountant 5 (five) years Selection cum merit
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-
17. Likewise, the Central Civil Accounts Service (Group C) Recruitment Rules, 2000 provide mode of recruitment and qualifications for the posts of Accountant and Senior Accountant :-
Name of Post Classification Scale of pay (Rs.) Educational and other qualification required for direct recruits Method of recruitment whether by direct recruitment or by promotion or by deputation/deputation and percentage of posts to be filled by various methods In case of recruitment by promotion/deputation /transfer grades from which promotion/transfer/deputation to be made. Accountant General Central Service Group C Non Gazetted-Ministerial 4000-100-6000 Bachelors degree from a recognized University (1) 70% in each cadre by direct recruitment through Staff Selection Commission (2) 25% by promotion.
(3) 5% in each cadre by promotion on the basis of limited departmental competitive examination (1) Posts remaining unfilled by direct recruitment through Staff Selection Commission may be filled through deputation by taking persons of appropriate grade from other Organised Accounts Services and Government departments.
Promotion shall be made from Lower Division Clerks belonging to the service with not less than 5 years of regular service as on 1st of January of each year.
Promotion shall be made from Lower Division Clerks belonging in the service with 3 years of regular service in the grade and who qualify in the departmental competitive examination conducted by Controller General of Accounts, as per procedure laid down under sub-rule (4) of rule 5.
Sr. Accountant General Central Service Group C Non Gazetted-Ministerial 5000-150-8000 Not applicable By Promotion Promotion from amongst Accountants with 3 years of regular service and who have qualified the Departmental Confimatory Examination as per terms and conditions specified and conducted by the Controller General of Accounts, and such promotion shall be made from the common seniority list for all Ministries on the basis of sub-rule (2) of rule 5.
Likewise in case of Central Civil Services (Pay and Accounts Officers and Senior Accounts Officer) Recruitment Rules, 2000, the mode of recruitment and qualifications provide as follow:-
Name of Post Classification Scale of pay (Rs.) Method of recruitment, whether by direct recruitment or by promotion or by deputation or by absorption and percentage of the posts to be filled by various methods In case of recruitment by promotion/deputation/absorption, grades from which promotion/deputation/absorption to be made Pay and Accounts Officer General Central Service Gr. B Gazetted-Ministrial 7500-250-12000 By Promotion
(a) Promotion: Assistant Accounts Officers with three years regular service in the grade failing which Assistant Accounts Officers with six years, of combined service in the grade of Assistant Accounts Officer/Junior Accounts Officer of which two years must be in the grade of Assistant Accounts Officer Senior Accounts officer General Central Service, Gr. B Gazetted-Ministerial 8000-275-13500 By Promotion Pay and Accounts Officer with two years of regular service in the grade.
18. Thus, we clearly find that within the organized Accounts cadre, there are numerous differences in terms of nomenclature grades, method of recruitment, scale of pay, method of recruitment, duties, responsibilities and other functions. We could have gone on highlighting these differences but we think it would simply add to the bulk of the decision and not to its weight. Therefore, suffice it to hold that the scale of pay is determined by these considerations looking holistically at them and not by accidents of historic parity or by taking up isolated cases here and there.
19. The respondents have also contested that the decision in the case of State of Mizoram & Anr. Vs. Mizoram Engineering Service Association, (2004) 6 SCC 218 will also not be applicable to the facts of this case, as the Honble High Court has not accepted the membership of the organized services as its sole criterion for deciding the issue. In the case of State of Bihar & Anr. Vs. Balmukun Saha [(2000) 4 SCC 640], the Honble Supreme Court has held that an act of historical parity may not constitute a determining criteria as it could also be an administrative accident. In yet another case in Bachan Singh Vs. State of Punjab, (1982) 3 SCC 24, the Honble Supreme Court, while considering challenge to Section 354(3) of CrPC, held that sentencing procedure historically being followed by the courts may be a historical wrong as well. It is to be based upon an exercise of sentencing discretion in relation to the facts of the case, circumstances and so many other factors. The fact that a different sentence had been awarded in relation to similar offence cannot be said to be untrammeled and unguided of judicial power. Merely because a particular sentence was announced earlier does not become a cause for seeking parity in sentence in all other cases.
20. We have also taken note of the fact that the applicants have not been able to produce any documents relating to historical parity of the Accounts cadre of RAW with the respondent organization or in other cases dealing with similar accounts work in the Ministry. Therefore, we close this issue by merely stating that a historical parity does not constitute the sole ground for decision which has to be determined in relation with other factors as have already been stated.
21. We find that in the case of J.R. Chobedar vs. Union of India & Ors. (supra), the contestation was between the Pay and Accounts Border Security Force and the respondent organization. The challenge was to inaction of the respondents in not prescribing the pay scales of various posts like that of Sr. Accountants, Junior Accounts Officer and Accounts Officer of Pay and Accounts Division of the BSF at par with the scales of pay attached to the corresponding posts of other Audit and Accounts Departments of Government of India. The second challenge was in respect of respondents in not creating 80% of the posts in the PAO of BSF for being granted the higher scale as has been done for the corresponding posts in various other Pay & Accounts Departments of the Government of India. We find that the question for determination in J.R. Chobedars case was as to whether there was an organized cadre. In the instant case, the issues are not same. We have already noted that there is no match in two cases insofar as qualifications, recruitment, conditions of service, workload etc. are concerned. In fact, we do not find any such authentic comparison made by any competent authority in this regard. It is distinguished in material facts. It is not a judgment in rem but judgment in personam and is only binding upon the parties concerned. It does not lay down a universal ratio that would be applicable to other cases otherwise the pay scale of all officers in accounts service would be the same. Therefore, we cannot consider the point of historical parity on the basis of this ground alone. To the contrary, the respondents have produced the recruitment rules of the organized Accounts cadres of various organizations, to show distinction in vital area. Therefore, we find that the judgment in J.R. Chobedars case is not applicable to the instant case.
22. In conclusion, we hold that the Honble High Court in its order dated 24.05.2012 in WP (C) 17546-65/2006 was not fully satisfied regarding the admissibility of the applicants. The Honble High Court, therefore, left the issue to be decided by this Tribunal in terms of other factors like nomenclature, mode of recruitment, functions, duties, responsibilities, the nature of duties etc. We further find that though the applicants have tried to show superficial historical parity, no evidence has been produced for the same in terms of Recruitment Rules, service conditions, workload, level of responsibility etc. and other documentary evidence. We also hold that historical parity is not the sole reason and the issue has to be decided in terms of other factors as have been mentioned earlier. We further find that the organized accounts cadres differ in numerous respects and there is no similarity between the applicants and these cadres. Equal pay for equal work does not have application here because in that case all nomenclatures would become uniform and the pay will only be determined by nomenclatures and groupings of services. We further find that determination of pay involves consideration of a large number of voluminous data and complex exercises involving duties, functions, responsibilities etc. Therefore, it is best left to expert bodies like Pay Commission. We are additionally swayed by the fact that the 7th Pay Commission has been constituted and is already sitting. We have already directed in a number of OAs e.g. Nabi Ahmed & Ors. versus Union of India & Ors. [OA No.3601/2012 decided on 30.09.2014] and KHC Rao versus NHRC & Ors. [OA No. 643/2013 decided on 29.10.2014] that such issues involving pay structures and parity of pay etc. should be referred to by the department to the Commission for its expert adjudication/determination, lest a decision by the courts in this matter may complex the task of the Pay Commission. Hence, we dismiss the OA with directions that the department should take steps to refer such disputes to the 7th Pay Commission, including present case under consideration.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /lg/