Central Administrative Tribunal - Delhi
Reena Gautam vs Govt. Of Nctd on 28 November, 2024
1
Item No. 60/ C-5
C
O.A. No. 587/2018
Central Administrative Tribunal
Principal Bench: New Delhi
O.A. No.587/2018
/2018
Reserved on 06.11.2024
Pronounced on 28 .11.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati
Khati, Member (A)
Smt. Reena Gautam, aged 51 years, Working as Vice-
Principal, In GLN Sr.Sec. School for the Deaf, Delhi Gate,
New Delhi. r/o 130, Gautam Nagar, New Delhi.
Applicant
(By Advocate: Mr. Yogesh Sharma)
V/s
1. Govt. of NCT of Delhi through The Chief Secretary, New
Sectt. New Delhi.
2. The Secretary, Directorate of social Welfare (DSW), Govt.
of NCT of Delhi, GLNS complex, Delhi Gate, Delhi.
3. The Deputy Director(Admn.-I),
Director(Admn. I), Department of Social
Welfare, Govt. of NCT of Delhi, GLNS Complex, Delhi
Gate, New Delhi.
...Respondent
(By Advocate: Mr. Anuj Kumar Sharma
Sharma)
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Item No. 60/ C-5
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O.A. No. 587/2018
ORDER
By Hon'ble Mr. Manish Garg, Member (J) By virtue of the present Original Application (OA), the applicant is seeking the following reliefs:
"(i)That the Hon'ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 01.3.2016 (Annex.A/1) only to the extend by which the respondents fixed the pay scale of the applicant in PB-2 PB 2 Rs. 9300 9300- 34800+Grade Pay of Rs. 5400/-, 5400/ , and consequently, pass an order directing the respondents to fix the pay of the app applicant in PB-3(Rs.
156000+39100) with GP 5400 from the date of promotion as Vice--principal principal i.e. w.e.f. 1.3.2016 with all consequential benefits including the arrears of difference of pay and allowances with interest.
(ii) Any other relief which the Hon'ble Tribunal deem fit and proper may also be granted to the applicant, along with costs of litigation."
2. Narrating the facts of the case, learned counsel for the applicant contended that by the impugned order dated 01.03.2016 (Annexure A/1), the applicant, who was promoted from Headmistress to Vice Principal, has been placed in Pay Band-2.
Band 2. However, it is asserted that she should have been granted Pay Band-3.
Band The learned counsel highlighted that under the Central Civil Services (Revised Pay) Rules, 2008, the pay scale and pay fixation for the position of Vice Principal fall under PB PB-3.
3. Learned counsel for the applicant submitted that the applicant received a regular promotion, and in no instance within the respondent's institution, a Vice Principal has been placed in PB PB-2, which corresponds to the pay scale of a Post Graduate Teacher (PGT).
3Item No. 60/ C-5 C O.A. No. 587/2018
4. The learned counsel further relied upon on this Tribunal Tribunal's decision in OA No. 2359/2012 titled Mohammad Hussein vs. Government of NCT of Delhi, particularly para 5, which reads as follows:
"5. We have heard the learned counsels for both the sides and perused the pleadings placed on record. From the comparative chart of pay scales of Principal/Vice-Principal, Principal/Vice Principal, ITI and ViceVice- Principal, Education Department, OS, AAO and JAO, w which have not been disputed by the respondents, it is obvious that the Principal/Vice Principal of ITI after the IV CPC had parity in the Principal/Vice-Principal matter of pay scale with the Vice-Principal Vice Principal of Education Department and enjoyed superior scale to that of OS, AAO and JAO. In both the speaking order dated 18.09.2011 and in the counter affidavit of the respondents it has been stated that the counter-affidavit Pay Scales of Principles/V.P., ITI were analogous to that of Supdt. and AAO in the 4th, 5th CPC. However, in the 6th CPC, Principal has been given Grade pay less than that of these two categories, which is an anomaly keeping in view the functional responsibilities and hierarchical position of the post in ITI. It is obvious that the respondents have failed to notice the fact that the AAO AO and JAO and OS were all in scales lower than that of Principal/Vice Principal, ITI in the 4th CPC and, therefore, it is a Principal/Vice-Principal, wrong statement that they were in analogous scales. The applicants had parity with Vice-Principal, Vice Principal, Education Department. However, leaving leaving that aside, the department own internal Anomaly Committee made a proposal to the National Anomaly Committee, DoP&T, Ministry of Home, Government of India, recommending a grade pay of Rs.5400/ Rs.5400/- to Principal/Vice- Principal taking into account the overall overall picture prevailing in the matter of pay scale and comparing the pay scale of all staff of Education Department and ITI in GNCT of Delhi. Subsequently, for reasons that have not been brought on record the Department has revised its recommendation to grant grant grade pay of Rs.4800/ Rs.4800/-
which was rejected by the Ministry of Home Affairs (Finance Wing) on the plea that the proposal amounted to upgradation of posts, which is construe (sic) as creation of post. As per Department of Expenditure order creation of post is totally banned. Moreover, formulation of 7th CPC has been announced. It would be appropriate if the issue of upgradation of post may be taken up with the CPC as and when called for. It is obvious that the whole issue has been dealt with in a lackadaisi lackadaisical manner and without application of mind to the issues that have been raised before this Tribunal in the earlier OA-3426/2009 OA 3426/2009 and in which the respondents were directed to pass a speaking order. The speaking order does not give any reason why the respond respondents did not agree with the recommendations of its own Anomaly Committee for grant of grade pay of Rs.5400/-
Rs.5400/ nor it has dealt with other important issues like higher qualification of Principal/Vice Principal/Vice-
Principal, ITI; subordinates getting superior and better sscale than the supervising officer. Here, we would like to refer to the judgment of the High Court of Punjab and Haryana in LPA No.176, 211 of 2005 Prem Chand Garg and Ors. V. State of 4 Item No. 60/ C-5 C O.A. No. 587/2018 Punjab and Ors., 2011 (4) SCT 135 (P&H) where it was held that:
Tinkeringg with the recommendations either of the pay Tinkerin Commission or of the Senior Officers Committee constituted for removal of anomaly would be wholly unwarranted because they are expert body and their recommendations are made after hearing all sides. The aforementioned aforementioned facts indicate that the applicants have made out a strong case in their favour while the respondents have chosen not to contest with a reasoned argument in their submissions as to why the claim of the applicants is not justified and cannot be accepted."
accept
5. Opposing the grant of relief, learned counsel for the respondent relied upon on the averments in the counter reply. He argues that the post of Vice Principal was created by the Competent Authority after the Sixth Pay Commission in the pay scale of Rs. 9300 9300-34800 with Grade Pay of Rs. 5400, under the Directorate of Social Welfare vide order dated 19.11.2012. The learned counsel highlighted that this post is classified as Group 'B' Gazetted, and the selection method stipulated in the Recruitment Rules (RRs) is based on selection selection-cum-seniority. He also further contended contend that the grade pay assigned to the applicant is in accordance with the Finance Finance Department's approval, following the creation of the post. He added that the relevant factors governing the pay scale, including the recommendations of the Sixth Pay Commission, were duly considered.
6. Learned earned counsel for the respondents also point pointed out that subsequent to the implementation of the Sixth CPC, the applicant's pay was revised to the Grade Pay of Rs. 9300-34800 9300 34800 with a Grade Pay of Rs.
4800, and the applicant is presently receiving a Grade Pay of Rs. 5400.
7. Learned counsel for the respondents resp s further argue argued that the applicant's post of Vice Principal, is within a special school under the 5 Item No. 60/ C-5 C O.A. No. 587/2018 Department of Social Welfare, and the nature of duties differs significantly from those of Vice Principals in the Education Department, Government of NCT NCT of Delhi. This distinction is crucial in understanding the pay structure accorded to the applicant.
8. The impugned order by the Competent Authority is supported by the learned counsel for the respondents, respondents, who cite cited paragraph 5(d) of the counter reply, which states as follows:
"(d) That the contents of the said para are false hence denied except those that are matter of record. This Department has running special school and the working of schools under Education Department, GNCTD and Department of Socia Social welfare are different. The Education Department has large no of intake of students than Department of Social Welfare. Further, it is also mentioned here that the post of Vice Principal in this Department has been created in the Pay Scale of Rs. 9300 9300-34800 + 5400 Grade Pay in PB-2 PB The RRs to the post of Vice Principal of both the Departments i.e. Department of Social Welfare and Education Department are as under: -.
Colum No. RRs of RRS of
Department of Directorate
Social Welfare, of Education
GNCTD (copy GNCTD
enclosed (copy
Annexure-E) enclosed
Annexure-F)
01 [Name of the Vice Principal, (i)Vice Principal,
post] Government Lady Govt. Hr,
Noyce School for Secondary
Deaf and Dumb Schools
Male-48
Female-53
(ii)Vice Principal,
Teachers Training
Institute for male
candidates-One
post
(iii)Headmaster,
Government
Adult (Evening)
Schools for male
candidates-9 posts
Note:Male or
female candidates
will be considered
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Item No. 60/ C-5
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O.A. No. 587/2018
for appointment
to the posts meant
for such
candidates only.
02 [Number of 01* 111
post]
* (1999) Subject
to variation
dependent on
work load
03 [Classification]
[Classification General Central General Central
Service Group Service Group 'B'
'B' Gazetted Non Gazetted
Ministrial
04 [Scale of Pay] Rs. 7500-250
250- 650-30-740-35-
12000 810-EB-35-880-
40-1000-EB-40-
1200
9. Learned counsel for the respondents also emphasized the preliminary submission, which reads as follows:
"In V. Markendeya and Others vs. State of Andhra Pradesh and Others (1989) 3 SCC 191, Hon'ble Supreme Court has held, "The principle of "equal pay for equal work" is not an abstract one, it is open to the State to prescribe different scales of pay for different cadres having regard to nature, duties, responsibilities and educational qualifications. Different grades ace laid down in service with varying varying qualifications for entry into particular grade. Higher qualification and experience based on length of service are valid considerations for prescribing different pay scales for different cadres. The application of doctrine arises where employees are equal equal in every respect, in educational qualifications, duties, functions and measure of responsibilities and yet they are denied equality in pay. If the classification for prescribing different scales of pay is founded on reasonable nexus the principle will not not apply". In the present case as well there are no similarities between the two sets of posts, and mere similarity in nomenclature of the two posts, cannot be a ground for equating them."
10. In rejoinder, learned counsel for the applicant refer referred to the Recruitment Rules for the post of Vice Principal in the Government Lady Noyce School for the Deaf and Dumb, wherein the scale of pay is Rs. 7500-250--12000. The learned counsel for the applicant argued that, although the Grade Pay of Rs. 5400 is acknowledg acknowledged, the pay scale 7 Item No. 60/ C-5 C O.A. No. 587/2018 granted to the applicant should have been PB PB-III (Rs. 15600-39100) + Grade Pay of Rs. 5400.
11. ANALYSIS 11.1 We mayy highlight that the 1951 Equal Remuneration Convention, Convention 100 of the International Labor Organization, a United Nations body states as follows -
"Each Each member shall, by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of of equal remuneration for men and women workers for work of equal value value."
11.2. Goal 8 of the UN Sustainable Development is to "achieve full and productive employment and decent work for all women and men, including for young people and persons with disabil disabilities, and equal pay for work of equal value by 2030."
2030.
11.3. An Equal Pay International Coalition (EPIC) was established in 2017 as a multi-stakeholder multi stakeholder initiative that was led by the UN Women, ILO, and the Organization for Economic Co-operation Co operation and Develop Development (OECD) that endeavors to achieve equal pay for both women and men across the globe. India too has played a cardinal role in the formulation and implementation of the United Nations Sustainable Development Agenda 2030, in lines of the Sustainable Deve Development Goals (SDGs).
8Item No. 60/ C-5 C O.A. No. 587/2018 11.4. In Randhir Singh vs Union Of India & Ors (1982 AIR 879), the Apex Court observed as under:-
under:
"It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this CouCourt have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons r barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic.
11.5. Again in another case of Frank Anthony Public School Employee's Association vs. Union of India (1986) 4 SCC 707, the Apex Court abolished Section 12 of the Delhi School Education Act, 1973 as it was unconstitutional and in violation of Article 14. The C Court observed that the teachers and employees of Frank Anthony Public School, a recognized unaided minority school, were receiving emoluments that were in severe disparity as compared to the teachers and employees of other Government schools. The petitione petitioner teachers association accordingly knocked on the doors of the Apex Court under Article 32 of 9 Item No. 60/ C-5 C O.A. No. 587/2018 the Constitution, praying for equalization of their salary pay scales and other service conditions with those of their counterparts. The Apex Court granted the necessary necessary relief to the petitioners and held that Section 12 of the Delhi School Education Act, 1973 is void and constitutionally invalid as it was directly in the teeth of Articles 14, 21, and 23 of the Indian Constitution.
Constitution 11.6. In Civil Appeal No. 4267 OF 2011 P.C. Modi Versus The Jawaharlal Nehru Vishwa Vidyalaya And Another decided on 13.12.2023, the Apex Court observed as under ::-
"9.
9. The reliance placed by the Division Bench of the High Court on the decision of a three-Judges three Judges Bench in the case of State of Madhya Pradesh and Others v. Ramesh Chandra Bajpai11, wherein though reference was made to the decision Bajpai11, of P.S. Ramamohana Rao (supra), it was held that the proposition laid down in the said case should not have been automatically extended to other cases cases and the whole issue would depend on the nature of Rules under which an employee is governed, is in our opinion, misplaced. Laying emphasis on the aforesaid observations made in the last para of the Ramesh Chandra Bajpai's case (supra), the impugned judg judgment records that the definition of a "teacher" under the M.P. Government Service Rules cannot be imported into Statute 32 to give it a liberal interpretation so as to include a Sports Officer as a teacher.
10. The relevant provisions of the Act and the SStatute governing the instant case have been extracted above and juxtaposed with the provisions of the A.P. Act and having gone through the relevant Regulations, there is no manner of doubt that the definition of the word "teacher" under the J.N.K.V.V. Act corresponds with the definition of "teacher" under the A.P. Act, which was the subject matter of consideration in P.S. Ramamohana Rao (supra). We are therefore of the opinion that the Division Bench of the High Court had no reason to rely on the observations observations made in the case of Ramesh Chandra Bajpai (supra) where the fact situation was entirely different. In the said case, this Court was required to decide as to whether the private respondent therein who was working as a Physical Training Instructor in the Government Ayurvedic College, Ujjain, Madhya Pradesh could claim parity of pay with teachers who had been granted UGC scale of pay. The view expressed was that the doctrine of "equal pay for equal work" can only be invoked when employees are similarly situated ated and there is wholesale identity between holders of the 10 Item No. 60/ C-5 C O.A. No. 587/2018 two posts. This Court did not find any substance in the plea taken by the respondent therein that the decision in the case of P.S. Ramamohana Rao (supra) would have any application to the facts of the said case and observed that the said decision had been misapplied and misconstrued by the High Court to give benefit to the private respondent.
11. In the case at hand, a comparison of the fact situation and the provisions of the relevant Act and Reg Regulations with those analysed in the case of P.S. Ramamohana Rao (supra), would show clear parity. Just as under the A.P. Act where the definition of a "teacher" contained in Section 2(n) was an expansive one and extended not only to those persons who impart instructions, conduct and carry on research work for impart extension programme, but also those who were declared to be a teacher within the purview of the definition under the Statute framed by the State Government, same is the position under the J.N.K.V.V. Act, Act, the Statute and relevant Regulations. We are therefore of the opinion that the Division Bench of the High Court fell into an error by placing reliance on the decision in Ramesh Chandra Bajpai (supra), where the issue involved was at variance.
12. In view of the aforesaid discussion, it is deemed appropriate to quash and set aside the impugned order dated 14th December, 2009 and restore the judgment dated 26th April, 2005 passed by the learned Single Judge. It is declared that the appellant, who was discharging the duties of a PTI/Sports Officer, would fall within the definition of a "teacher" and would have been entitled to be continued in service till completion of 62 yearsofage. Astheappellantwasprematurelyretiredbytherespondentsattheag eof 60 years, it is held that he shall be entitled to all consequential and monetary benefits including, arrear of salary, etc., had he continued in service upto to the age of 62 years. The retiral benefits of the appellant shall also be computed on a presumption that his age of retirement was 62 years. The entire amount due and payable to the appellant shall be computed by the respondents and paid over to him along with a copy of the said computation within a period of six weeks from today.
13. The appeal is allowed allowed on the aforesaid terms.
terms."
11.7. In the present case, there is nothing on record to establish that nature of work is more or less.. There is no variation in academic qualification or experience which justifies classification. The nature of duties performed by the applicant as Vice Principal for specially abled is not only functionally same as that of normal teaching but a more tedious one. The standard of teaching, teach methodology, quality and sensitivity is 11 Item No. 60/ C-5 C O.A. No. 587/2018 rather more. The equal pay principle cannot always be translated into a rigid mathematical formula.
11.8. We find rather interesting to note that in Writ Petition (Civil) No. 132/2016 titled Rajneesh Kumar Pandey& Others Versus Union of India & Others the Apex Court vide record of proceedings held on 21.7.2022, observed as under:-
under "Our Our attention has been invited to the communication issued by the Under Secretary to the Government of India, Ministry of Education, Department of School Education and Literacy dated 10.06.2022 informing all the State Governments and Union Territories about the acceptance of the recommendation made by the Rehabilitation Council of India by the department and urging the concerned States/Union Territories to give effect to the said decision in right earnest and adhere to the direction given by this Court in judgment dated 28.10.2021.""The 28.10.2021.""The parity of pay and service conditions should be adhered to for special education teachers as done for general education teachers as national and state levels."
4. Regarding RCI recommendation recommendation contained in Note 2 (#) of para 2 above, i.e. "the parity of pay and service conditions should be adhered to for special education teachers as done for general education teachers at national and state levels", it is related to respective State Governments/ Governments/ UT Administrations as Education being in the concurrent list of subjects. Therefore, State Governments/ UT Administrations may ensure.
5. RCI has also recommended and redefined the role of special teachers, while being a catalyst to empower children with disabilities special teachers will undertake the following role responsibilities for facilitating inclusive education:
i. Providing tips for making an inclusive school climate; culture and ethos where all systems from admission to assessments, teaching and evaluation are disability friendly. teaching ii. Planning curriculum with reasonable accommodations, including adaptations and modifications as per individual and specific disability needs.
iii. Collaborate with general teachers for certain skill based subjects jects or for activities which have small group instructions like cooperative learning, flipped classrooms and peer tutoring. iv. Develop and create supplemental learning materials for specific students, including visual, manipulative, text, and technology resources.12
Item No. 60/ C-5 C O.A. No. 587/2018 v. Undertake need assessment and examine student's special educational needs and progress in classrooms and beyond within school hours.
vi. Collaborate with school counselor for monitoring and addressing grievances and prevent bullying of chi children with disabilities.
vii. Routinely check the functioning and maintenance of aids, appliances devices and assistive devices. viii. Undertake parent support programs: connect parents to schools and vice versa.
ix. Develop a buddy system/Divyangamitra by creating sensitization programs for peers.
x. Identify talents, abilities and twice exceptionality in children with disabilities.
6. The outreach activities for special teachers are as under:
i. Undertake home visits and support home training progra programs.
ii. Collaborate and liasoning with boards for assessments, certifications and UDID cards.
iii. Conduct community sensitization programs and conduct surveys.
iv. Undertake resource mobilization; for example arranging for device support, Braille books, interpreters services, arranging readers and scribe for children with disabilities. v. Communicating and advocating for the right students with disabilities.
7. The suggested activities for special teachers are as under:
i. Developing annual/monthly annual/monthly calendar of activities for inclusion. ii. Co-planning Co planning of lessons and providing tips for teaching children with disabilities Implementation of IEPs. iii. Arranging for celebrations and workshops such as poster competitions, showcasing success stories and films glorifying abilities of children with disabilities for awareness and empowerment.
iv. Working with school council/School Development Management Committee (SDMC) School Management Committee (SMC) for inclusive education, community and parent volunteering activities. v. Ascertaining felt needs of teachers, develop checklists or inclusive, experiential workshops, disability sensitizations etiquettes, family fair and 'Inclusion Mela'.
etiquettes, Mela'."
11.9. We observe the role of special teacher to empower children with disabilities is well recognized and as such the special teachers pay parity 13 Item No. 60/ C-5 C O.A. No. 587/2018 cannot be negated. Hence, the action on o the part of the respondents in discriminating the special teacher in matter of pay scale runs contrary to the letter and spirit of goals sought to be achieved through "The Rehabilitation Council of India Act, 1992" which provides for regulating and monitoring the training of rehabilitation rehabilitation professionals and personnel;
promoting research in rehabilitation and special education; the maintenance of a Central Rehabilitation Register; and for matters connected therewith or incidental thereto thereby ending the disadvantages suffered by the handicapped handicapped persons in every walk of life including education.
12. CONCLUSION 12.1 In view of the above backdrop and detailed analysis, we allow the present OA and quash the impugned order dated 01.03.2016 only to the extent by which the respondents fixed the pay scale of the applicant in PB-2 2 and direct the respondents to fix the pay of the applicant in PB-3 (Rs. 156000+39100) with GP 5400 from the date of prom promotion as Vice Principal i.e. w.e.f 01.03.2016 with all consequential benefits benefits. All pending applications disposed of. No order as to costs.
(Dr.
Dr. Anand S Khati)
Khati (Manish Garg)
Member (A) Member (J)
/arti/