Central Administrative Tribunal - Chandigarh
Krishan Jaspal Son Of Sh. Prahlad Singh ... vs Chandigarh Administration Through Its ... on 13 December, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
CHANDIGARH BENCH
O.A.NO.060/00414/2015 ORDERS PRONOUNCED ON:13.12.2016
(Orders reserved on: 6.12.2016)
CORAM: HONBLE MR. SANJEEV KAUSHIK, MEMBER (J) &
HONBLE MS. RAJWANT SANDHU, MEMBER (A).
1. Krishan Jaspal son of Sh. Prahlad Singh age 36 years working as Law Officer in the Department of Law and Prosecution, Chandigarh Administration, U.T. Secretariat, Sector-9, Chandigarh, presently posted in the office of Director Transport, Chandigarh Transport Undertaking, UT, Chandigarh.
2. Manjit Singh Masoun son of Sh. Darshan Singh age 35 years working as Law Officer in the Department of Law and Prosecution, Chandigarh Administration, U.T. Secretariat, Sector-9, Chandigarh presently posted in the Estate Office, U.T., Chandigarh.
APPLICANTS
VERSUS
1. Chandigarh Administration through its Home Secretary-cum-Law Secretary, Chandigarh Administration, U.T. Secretariat, Sector-9, Chandigarh.
2. Legal Remembrancer-cum-Director of Prosecution, Chandigarh Administration, Department of Law and Prosecution, U.T. Secretariat, Sector-9, Chandigarh.
RESPONDENTS
Present : Mr. D.R. Sharma, Advocate, for the applicants.
Mr. Arvind Moudgil, Advocate for the Respondents.
O R D E R
HONBLE MR. SANJEEV KAUSHIK , MEMBER (J)
1. The applicants are aggrieved against the order dated 22.4.2014 / 17.6.2014 (Annexure A-1) issued by the respondent no.1 and order dated 23.1.2012 (Annexure A-2) and 12.1.2009 (Annexure A-9) issued by respondent no.2 whereby their request for grant of pay scale of Rs.7000-10980 has been rejected on the ground that the same was granted only to the existing incumbents by the Government of Punjab vide notification dated 22.10.2001, adopted by the Chandigarh Administration vide notification dated 1.1.2002. They have further sought issuance of a direction to the respondents to grant them pay scale of Rs.7000-10980 w.e.f. the date of their appointment i.e. 4.7.2006, in terms of the Government of Punjab Notification dated 22.10.2001, as adopted by Chandigarh Administration on 1.1.2002, whereby Law Officers who fulfill the qualifications and experience prescribed for the post of Assistant District Attorney have been allowed parity in pay scale with the post of Assistant District Attorney.
2. The facts are in brief. Both the applicants got enrolled with the Bar Council of Punjab and Haryana Chandigarh in the year 2001 and 2003 respectively. They were appointed as Law Officers in the Law and Prosecution Department of Chandigarh Administration in the pay scale of Rs.6400-10640 plus usual allowances as sanctioned by the Government from time to time and they joined their duties on 4.7.2006. They successfully completed their probation period of two years w.e.f. 3.7.2008.
3. Pursuant to the recommendations of the IVth Punjab Pay Commission, the Government of Punjab issued Punjab Civil Services (Revised Pay) Rules, 1998. Vide notification dated 19.5.1998, the pay scale of Assistant District Attorney (ADA), Law Officer and Deputy District Attorney (DDA) of Law and Prosecution Department were revised w.e.f. 1.1.1996 to Rs.7000-10980, Rs.6400-10640 and Rs.7880-11660 respectively. The Chandigarh Administration adopted the said notification dated 19.5.2008 of Government of Punjab w.e.f. 1.1.1996 in respect of employees of U.T. Chandigarh vide notification dated 18.9.1998. Thereafter, the Government of Punjab issued notification dated 22.10.2001 for 5th amendment to the Punjab Civil Services (Revised Pay) Rules, 1998, revising the pay scale of post of Law Officer to Rs.7000-10980 from Rs.2000-3500 (Revised to Rs.6400-10640) w.e.f. 1.1.1996, bringing them at par with ADA working in State of Punjab. The same was adopted by Chandigarh Administration vide notification dated 1.1.2002, revising the pay scale of post of Law Officer to Rs.7000-10980 granting parity in pay scale with the post of ADA to those law officers who fulfill the qualification and experience of the post of ADA as was done by the State of Punjab. The qualification and experience prescribed for the post of ADA is provided in Chandigarh Administration, Law and Prosecution Department (Group-C Non-Gazetted Posts) Rules, 2001. The applicants fulfill the same qualification and experience as provide or the post of ADA, therefore, they submitted a request on 9.9.2008 for grant of parity in pay scale with the post of ADA in pay scale of Rs.7000-10980 w.e.f. 4.7.2006 i.e. when they had joined their duties. Vide letter dated 12.1.2009, respondent no.2 informed them that their request cannot be acceded to and they are not entitled for the pay scale of Rs.7000-10980 as same was granted to the existing incumbents by the State of Punjab vide notification dated 22.10.2001 as adopted by Chandigarh Administration on 1.1.2002 and it was applicable to those Law Officers who had joined before the issuance of the notification and since the applicants had joined on 4.7.2006, therefore, they cannot be granted the benefit of pay scale of Rs.7000-10980. Thereafter the applicants again requested on 14.1.2009 and on their request, there was some correspondence between the State of Punjab and the Chandigarh Administration with regard to the applicability of the notification for those Law Officers who were appointed after the issuance of notification, whether they can be granted the benefit of pay scale, which was applicable only to those who were in service prior to the issuance of notification. However, on 23.1.2012, respondent no.2 informed the applicants that their request was considered in consultation with the Finance Department of Chandigarh Administration, who has advised that their request cannot be accepted being not covered under the rules / instructions. The appeal preferred by the applicant no.1 was rejected on 22.4.2014 stating that notification issued by State of Punjab is dated 22.10.2001 adopted by the Chandigarh Administration which does not cover the case of the applicants. Hence the O.A.
4. Mr. D.R. Sharma, learned counsel for the applicants vehemently argued that the respondents cannot decline the request of the applicants for grant of pay scale of Rs.7000-10980 as was made available to Law Officers in State of Punjab at par with ADAs working in State of Punjab as the applicants too fulfill the same qualifications and experience as laid down for ADAs in the Rules and once Law Officers in State of Punjab have been given higher pay scale of Rs.7000-10980 at par with ADAs, denial of same to the applicants is discriminatory and arbitrary. The applicants are also entitled to benefit of notification dated 22.10.2001. Once the State of Punjab has accepted request of Law Officers of State of Punjab by removing anomaly, then they cannot be allowed to create a artificial discrimination on the basis of date of appointment, one class appointed prior to notification and another who joined after date of notification. He argues that a classification must be based upon intelligible differentia that distinguishes persons or things that are grouped from others that are left out of the group. This differentia must have a rational relation to the object of classification. There should be a relation between the differentiations to the object of the classification. If there are no such relations, the reasonable classification would fail. In this case, he argues, there is no relation between classification and as such it has to fail.
5. The respondents have resisted the claim of the applicant by filing a written statement wherein they have stated that by virtue of notification dated 13.1.1992, all the notifications issued by the State of Punjab would apply ipso facto to the corresponding posts in U.T. Chandigarh and since notification issued by the Government of Punjab dated 22.10.2001 talks of provision of a cut of date for grant of higher pay scale i.e. it is to be given only to those who were in service on the date of notification, the same cannot be given to the applicants who had joined service after such cutoff date. They further submit that since there is no further amendment to the said notification by State of Punjab by issuance of any notification, thus the respondents cannot grant said benefit on their own to the category of the applicants. Therefore, they have prayed for dismissal of the O.A.
6. Mr. Moudgil, reiterated what is stated in the written statement.
7. We have given our thoughtful consideration to the entire matter and have perused the pleadings on record.
8. The short question that is to be adjudicated in this case is whether the applicants can be granted the same pay scale as provided in the Notification dated 22.10.2001 issued by the State of Punjab and adopted by the Chandigarh Administration on 1.1.2002?
9. A perusal of the notification dated 22.10.2001 provides that it was issued to amend the Punjab Civil Services (Revised Pay) Rules, 1998 namely it was called Punjab Civil Services (Revised Pay) (Fifth Amendment) Rules, 2001 and was to come into force w.e.f. 1.1.1998. The pay scale of Law Officer of Rs.2000-3500 has been revised to Rs.7000-10980 and it is clearly provided in remarks that The existing incumbents who fulfill the qualifications and experience prescribed for the post of Assistant District Attorney of Department of Prosecution and litigation are allowed parity in pays scale with the post of Assistant District Attorney. Those Law Officers who do not possess such qualifications and experience are entitled to the pay scale of Rs.6400-10640.
10. The Administration took up the matter with the Govt. of Punjab vide letter dated 17.3.2009 and 17.7.2009 and the Government of Punjab had advised them vide letter dated 5.10.2009 to decide the matter at their own level. Again a decision was taken to re-examine the matter and matter was taken up with L.R. Punjab as to whether the benefit of scale of Rs.7000-10980 in terms of Punjab Government letter dated 22.10.2001 has been allowed to the LO who fulfill the qualification and experience prescribed for the post of the ADA and is applicable to the persons who joined the Department after the issuance of notification dated 22.10.2001 vide letter dated 23.9.2010. In response, the LR Punjab has informed that Law Officers who possessed the requisite qualification and experience but were appointed after issue of said notification are also required to be given the pay scale of Rs.7000-10980. It appears that this advice did not find favour with the Administration and they again referred the matter to the Punjab Government. The Finance Department of Govt. of Punjab has informed that there is no amendment in the Punjab CSR (Revised Pay) Rules, 1998 for the grant of pay scale of Rs.7000-10980 to the Law Officers who possess the qualification and experience but were appointed after the issuance of notification dated 22.10.2001. Thus, it is pleaded by Administration that unless such rules are amended, the applicants cannot be granted benefit of higher pay scale.
11. In so far as fixing of a cut off date is concerned, the law is that the same cannot be tinkered with unless fixation of same is found to be in colourable exercise of power or wholly illegal and arbitrary and does not appear to any reason. The Hon'ble Apex Court in Civil Appeal No.129 of 2003 -State of Punjab and others Vs. Amar Nath Goyal and others decided on 11.8.2005 wherein the issue of cut off date for grant of improved retiral dues came up for consideration. The Court held as under :-
"A large number of employees, both of the Central Government as well as the State Governments of Punjab and Himachal Pradesh, who had retired prior to 1.4.1995, applied for getting the additional benefits of increased quantum of death-cum-retirement gratuity up to the increased limit of Rs. 2.5 lacs. Their claims were rejected in some cases and in other cases, the CAT and the High Court took the view that such of the employees who had retired between 1.7.1993 and 31.3.1995 were also eligible for the aforesaid benefits."
12. Thereafter, the Hon'ble Apex Court upheld the said cut off date on ground that because of financial constraints it would be valid ground. The relevant observations read as under:-
"In the instant case before us, the cut-off date has been fixed as 1.4.1995 on a very valid ground, namely, that of financial constraints. Consequently, we reject the contention that the fixing of the cut-off date was arbitrary, irrational or had no rational basis or that it offends Article 14.
13. The above view has been followed by jurisdictional High Court in CWP No.17315 of 2007 titled Om Parkash and others Vs. State of Haryana etc. decided on 14.3.2014. Thus, we cannot tinker with the cut off date fixed by the Punjab Government.
14. However, one thing which is clear is that there has been parity of pay scales in respect of Law Officers of Punjab Government as well as Chandigarh Administration and if the Chandigarh Administration does not take any decision on its own, it would amount to harshness towards two individuals of the service who have been left out due to fixation of cutoff date or in other words use of the term existing incumbents. There is plenty of law that a Court or Tribunal cannot indulge in fixation of pay scales of the employees if there is found to be an inherent illegality in action taken by the authorities, the Court is not powerless in rendering justice. Despite the LR of Punjab having held that the applicants are entitled to the pay scale, the Administration has not cared to consider the case of the applicants and is depending upon one or the other ground taken by the State of Punjab to reject the claim of the applicants. The plea of historical parity has not even been touched by the respondents.
15. In the case of Union of India vs. Dineshan K.K., (2008)1 SCC (L&S) 248, the grievance of the petitioner, working in the rank of Radio Mechanic in the Assam Riles, was that though the Ministry of Home Affairs and Director General of Assam Rifles having accepted in principle that the members of the Assam Rifles should be given the same rank and pay structure as was given to other central paramilitary forces, yet the same had been denied to him. Taking note of the admission on the part of the Union of India that there was disparity between the pay scales of the members of the Assam Rifles and similarly ranked personnel of other paramilitary forces, the Honble High Court felt that it would be unreasonable and discriminatory if the pay scales given to Radio Mechanics in CRPF and BSF were denied to the Radio Mechanics in Assam Rifles, when the qualifications and service requirements in all the three organizations were identical. Consequently, the Honble High Court allowed the claim of the writ petitioner. The Union of India and others challenged the decision of the Honble High Court by filing SLP/Civil Appeal. Dismissing the appeal, the Honble Supreme Court held that 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 of India.
16. In the case of Haryana State Minor Irrigation & Tubewell Corporation & others v. G.S.Uppar & others, (2008) 2 SCC (L&S) 562, petitioners were working on the post of SDO, SDE, AE, and Law Officer with Haryana State Minor Irrigation Tube-wells Corporation Ltd., which was a Government company. The Corporation ever since its inception in the year 1970 had been following the pay scales of the employees of the Haryana Government as revised from time to time in respect of all categories of its employees. Claiming revision of pay scales at par with their counterparts working in the Government of Haryana, the writ petitioners moved the Honble High Court of Punjab & Haryana. The learned Single Judge allowed the claim of the petitioners. The letters patent appeal filed against the judgment passed by the learned Single Judge was also dismissed by the Division Bench. The appeal preferred by the Corporation was also dismissed by the Honble Supreme Court.
17. In the case of State of Kerala v. B.Renjith Kumar & others, (2008) 12 SCC 219, the respondents were members of the Bar. In 1993, respondents 1 and 2 were selected and appointed as Presiding Officers of the Industrial Tribunals, whereas respondent no.3 was selected and appointed as Presiding Officer in the year 1996, in the State of Kerala. Prior to 1998, the State Government had granted them pay scales at par with District Judges. However, when Judicial Officers were granted benefit of revision of pay scales in December 2001 with retrospective effect from March 2001, similar benefit was denied to them. Their claim for the grant of same scales of pay as that of the District Judges in the State having been rejected by the Government, the respondents moved the Honble High Court of Kerala. Their claim was resisted by the State on the grounds that while the Presiding Officers of the Labour Court were appointed under the provisions of Article 234 of the Constitution of India, the Presiding Officers of Industrial Tribunals were not so appointed under Article 234 of the Constitution of India, and therefore, the Presiding Officers were not entitled to the same scales of pay as recommended by the National Judicial Pay Commission (Shetty Commission) for the members of the Higher Judiciary. Taking note of the contentions, and claims and counter claims of the respective parties, the Honble High Court felt that the mere fact that the Presiding Officers of the Industrial Tribunals were not appointed on the recommendation of the Honble High Court or that they were not under the control of the Honble High Court cannot, by itself, be a good reason and adequate ground for treating them differently. Consequently, the Honble High Court allowed the claim of the respondents. Being aggrieved by the judgment of the Honble High Court, the State of Kerala filed SLP/Civil Appeal. The Honble Supreme Court dismissed the appeal filed by the State of Kerala.
18. In the case of Yogeshwar Prasad & others v. National Inst., Edu.Planning & Admn. & others, (2010)14 SCC 32, the appellants were working as Assistants, Stenographers with National Institute of Educational Planning & Administration, Delhi. The appellants in Civil Appeal No.209 of 2007 were working as Accounts & Administrative Assistants/Assistants/ Stenographers with Sahitya Academy, Delhi. The appellants were getting the same pay scale of Rs.425-800 up to 1986. The Assistants in the Central Government were also getting the same pay scale. According to the IVth Pay Commission, the pay scale of Assistants and Stenographers was revised from Rs.425-800 to Rs.1400-2600 in the Central Government. The Anomalies Removal Committee gave its recommendation increasing the pay scales from Rs.1400-2600 to Rs.1640-2900. Though the recommendation of the Anomalies Removal Committee were accepted from 1.1.1986, the appellants were not given the pay scale of Rs.1640-2900. Being aggrieved, the appellants moved the Honble High Court of Delhi. The learned Single Judge allowed the claim of the appellants. The letters patent appeal filed against the judgment of the learned Single Judge was allowed by the Division Bench. Hence, the appeals were filed by the appellants before the Honble Supreme Court challenging the judgment of the Division Bench. The Honble Supreme Court allowed the appeals and set aside the judgment passed by the Division Bench of the Honble High Court.
19. In the case of Union of India and others v. V.K.Sharma and others, W.P. (C) No. 3349 of 2010, decided on 17.5.2010, the respondents (who were applicants before the Tribunal in OA No.1499 of 2009) were working as Section Officer/Under Secretary/Private Secretary in Headquarters office (HQ) of the Indian Council of Agricultural Research (for short, ICAR) under the Department of Agricultural Research and Education (for short, DARE). They were aggrieved by the U.O. Note No. 303/Dir. IC/ 09 dated 16.03.2009 (Annexure-A/1), whereby the Respondent No. 3 declined to grant them Non-Functional Pay Scale of Rs.8000-13500 notionally w.e.f. 01.01.1996 and actual financial benefits w.e.f. 03.10.2003 on completion of 4 years of regular service in the grade. They approached the Principal Bench of Tribunal for directing the respondents to grant them benefit of Non Functional Pay Scale of Rs. 8000-275-13,500 also w.e.f. 1.1.1996 notionally and w.e.f. 3.10.2003 actually, with all the consequential financial benefits to the Section Officers and Private Secretaries of the ICAR Hqrs., as were granted to the similarly situated Section Officers/Private Secretaries in CSS/CSSS on the basis of Department of Personal & Training Office Order No. 21/36/2003-CS.I dated 13.11.2003, Order No. 5/4/2005-CS.I dated 25.01.2006 and Order No. 10/3/2004-CS-II (Pt. I) dated 24.6.2005 and dated 25th January 2006, further extended to the members of RBSSS, AFHQ and PMO. It was, inter alia, contended by the respondents before the Tribunal that objection was raised by the Finance Ministry mainly on the ground that the non-functional pay scale was only for the SOs of CSS and was not applicable for similarly designated posts. The Tribunal, after analyzing the recommendations of the 6th CPC, vide para 3.1.9 of its report, directed that the DOPT order No 21/36/2003-CSI dated 13.11.2003 shall be extended to the Section Officers/ Private Secretaries in so far as the non-functional pay scale of Rs.8000-275-13500 is concerned notionally w.e.f. 1.1.1996 and financially w.e.f. 3.10.2003. The Tribunal also directed the Respondents to disburse all admissible pay arrears and refund the amount of recoveries, if any, to the employees concerned. Being aggrieved thereby, the Union of India and others filed the writ petition. Dismissing the writ petition, the Honble High Court of Delhi held as under:-
10. Thus the argument of the petitioners made before us that there is no parity between the employees of ICAR with the officers of CSS as there are differences in the mode of recruitment, nature of duties and responsibilities, organizational hierarchy etc. is misconceived in the light of Government order dated 30.10.2008 where it has been approved that the pay structure for Assistants and Section Officers in the CSS may be extended to the Assistants/Personal Assistants and Section Officers/Private Secretaries in ICAR HQ. One more argument advanced before us is that granting of pay scales is purely an executive function and hence the Courts should not interfere with the same as it may have a cascading effect creating all kinds of problems for the Government and the authorities. However, this argument cannot be sustained as it is observed by the Tribunal that though fixation of pay and removal of anomalies is a domain of expert bodies like pay commission and the forum to decide it, is of the executive, yet judicial review is not altogether excluded.
20. It is, thus, apparent that the Court is not precluded from issuing directions to the authorities if it is found that their action does not conform to the fairness. In this case, the problem is recognized that the applicants are getting lower pay scale than their counter parts in the same cadre on the basis of cutoff date merely because use of term existing incumbents in the relevant notification. It has created two classes within the same cadre, one getting lower pay scale and the another higher pay scale. The applicants are only two persons who are left out from grant of the relevant pay scale. The LR of Punjab Government has also advised that there is no hindrance in grant of relevant pay scale to the applicants. The respondent Chandigarh Administration has not considered these facts on its own level and has rejected the claim of the applicants without considering the fact that if there is a wrong, remedy is to be found by them.
21. In view of the factual and legal position discussed above, this Original Application is allowed by quashing the impugned orders and directing the authorities to re-consider the entire matter and pass necessary orders by trying to find out a solution to the problem, within a period of 3 months from the date of receipt of a copy of this order.
22. The parties are left to bear their costs.
(SANJEEV KAUSHIK) MEMBER (J) (RAJWANT SANDHU) MEMBER (A) Place: Chandigarh Dated: 13.12.2016 HC* 1 (O.A.NO.060/00414/2015 Krishan Jaspal & Another Vs. UOI etc.)