Central Administrative Tribunal - Delhi
Shri Rabindra Nath Basu vs Union Of India Represented Through The on 16 May, 2011
Central Administrative Tribunal Principal Bench OA No.2102/2010 with MA No.1678/2010 OA No.2114/2010 with MA No.1686/2010 New Delhi, this the 16th day of May, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) 1. OA No.2102/2010 with MA No.1678/2010 1. Shri Rabindra Nath Basu, S/o Late P.R. Basu, Age-6o years, Residing at Block G-2, Flat No.46, Narkeldanga Central Govt. Staff Quarters, Kolkata-700054. 2. Shri Rabindra Nath Chattopadhyay, S/o Late Shib Ram Chattopadhyay, Age-59 years, residing at 658, Basunagar, Madhyamgram, Kolkata-7000129. 3. Shri Tapan Kumar Ghosh S/o Late Biraj Mohan Ghosh, Age 60 years, R/o 10-B, Gobinda Sarkar Lane, Kolkata 700 012. 4. Shri Dilip Kumar Paik S/o Late U. N. Paik, Age 53 years, R/o 1/5 A, Manohar Pukur, 2nd Lane, Kolkata 700 012. 5. Shri Asit Baran Biswas S/o Lae Hemanta Kr. Biswas Age 56 years, R/o B/8, Katjunagar, P.O. Jadavpur, Kolkata 700 012. 6. Shri Malay Kumar Ghosh S/o Late Sudarson Ghosh Age 59 years R/o 24/21, A. K. Mukherjee Road, PS. Baranagar, Flat No.A/2, Kolkata 700 090. 7. Shri M. C. Purkait S/o Shri Purkait, Age 60 years, R/o Village Madarat Das Para, P.O. Madarat, Dist. 24 Parganas (South) 743610. 8. Shri Arun Kumar Mozumdar S/o Shri Akshoy Mozumdar, Age 57 years, R/o P.O. & Village Naridana, Dist. 24 Parganas (South), West Bengal. 9. Shri Partha Pratim Sinha S/o Late Bimal Chandra Sinha Age 56 years, R/o Village Tongtala P.O. Baruipur, Dist South 24 PGS. 10. Shri Bimalendu Halder S/o Late Prafulla Kr. Halder, Age 57 years, R/o ASHABORI Dakshin Roy Pally, Baruipur, Kolkatta 700144. 11. Shri A. K. Bandyopadhyay S/o Late K. P. Banerjee, Age 56 years, R/o 647/1, Goyala Para Road, Sreeman Palli, Behala, Kolkata 700060. 12. Smt. Syamali Mukherjee W/o Shri Abhijit Mukherjee Age 59 years, R/o 74/1, Raja Ram Mohan Sarani, Kolkata 700009. 13. Smt. Lekhani Chakraborty W/o Shri Narayan Prasad Chakraborty Age 57 years, R/o 38, Vivekananda Road, Nabagram, Konnagar 712246, Dist. Hooghly, West Bengal. 14. Shri O. H. Siddique S/o Late Golam Quadr. Age 47 years, R/o 33 Q, P. Naskar Lane, Kokatta 700039. 15. Shri gulab Choudhury S/o Late Nirmal Choudhury, Age 57 years, R/o 53, Nil Ratan Mukherjee Road, P.O. Shibpur, Howrah 711102. 16. Smt. Minu Mirdha W/o Shri Bimal Chandra Mirdha Age 55 years, R/o Gournagar, Thakurpukur, Kolkatta 700063. 17. Smt. Sipra Barari W/o Shri Dipak Kr. Barari Age 56 years, R/o 47/30, Dr. S. P. Mukherjee Road, P.O.&P.S. Belgharia, Basudevpur, Kolkata 700 056. 18. Shri Nirmalendu Karmakar S/o Late Haridas Karmakar, Age 58 years, R/o Dr. B. C. Roy Road, P.O. Rajpur, Dist. South 24 Parganas, Kolkata 700149. 19. Smt. Sipra Basak W/o Shri Sudhir Basak Age 55 years, R/o 36 A, Shyambazar Street, Kolkata 700004. 20. Shri Nemai Chandra Saha S/o Late Mrityunjoy Saha, Age 54 years, R/o Vill & PO Amta, Dist Howrah 711401. 21. Shri Sushanta Sengupta S/o Late Purnendu Sengupta, Age 59 years, R/o Nabapalli, Gupta Colony, Kathal Tala, Barasat, North 24 Parganas, Kolkata 700 126. 22. Shri Pradip Kumar chakraborty S/o Late D. N. Chakraborty Age 59 years, R/o 3, Arabindo Nagar, (Swami Vivekananda Road), P.O. Nandan Nagar, Kolkata 700 083. 23. Smt. Neela Dasgupta W/o Shri B. R. Dasgupta Age 56 years, R/o 16 A, Lake View Road, Kolkata 700 029. 24. Shri Joydeb Sinha S/o Late Satkari Pati Sinha Age 56 years, R/o 112, Debaipukur Road, P.O. Hindmotor, Dist Hooghly 712233 (W.B.) 25. Shri Rabindra Nath Dey S/o Late Biswanath Dey Age 57 years, R/o 3, D. L. Roy Street, P.O. Beadon Street, Kolkata 700006. 26. Shri Arabinda Brahma S/o Shri Mukunda Bihari Brahma Age 60 years, R/o Village Palpakuria, P.O. Kaziparar (Barasat) Dist. 42 Pgs. (North) Kolkata 700124. 27. Shri Sunil Kumar Naskar S/o Late Santosh Naskar, Age 58 years, R/o Village Shankari Pukur, P.O. Piyali Town, P.S Baruipur, Dist. South 24 Pgs, Kolkata 700144. 28. Shri Samir Kr. Majumder, S/o Gopal Ch. Majumder Age 54 years, R/o 6/80/25 Bijoygarh, Kolkata 700032. 29. Shri Alok Kumar De Bhaumik S/o Late Anil Kr. De Bhaumik Age 58 years, R/o 1004, R. N. Tagore Road, Kolkata 700077. 30. Shri S. K. Mitra S/o Late M. N. Mitra, Age 56 years,R/o No.100467, 3, N. P. Road, Kolkata 700041. 31. Smt. Kalpana Roy D/o Late Manoranjan Ghosh Age 56 years, R/o SA-86, Salt Lake, SectorV, Kolkata 700091. 32. Shri Tapan Kumar Mandal S/o Late B. N. Mandal Age 56 years, R/o 1/143, Naktala, Kolkata 700047. 33. Smt. Kasturi Sen W/o Shri S. Sen, Age 55 years, R/o Central Govt. Quarters, B-1-XXIV, F1-251, Raja Basanta Roy Road, Kolkata 700029. 34. Shri Pranab Kumar Mukherjee S/o Late Birinchi Pada Mukherjee, Age 59 years, R/o C.P.W.D Quarters, Block-EB, Flat No.68, Salt Lake, Kolkata 700064. 35. Shri G. Ravichandran, S/o Late S. Govindan, Age 36 years, R/o Door No.SS-05, Central Govt. Hostel Complex, 7, Martin Park, Kolkata 700019. 36. Shri Khade Sharad Jaysing S/o Khade Jaysing Sambhaji, Age 35 years, R/o village Jashim P.O. Palashi, Tal-Man, Dist. Satra, Maharashtra 415508. 37. Shri Anindya Acharya S/o Late Arup Acharya Age 46 years, R/o Flat 102, Nandan Apartment, 200 Dum Dum Park, Kolkata 700055. 38. Shri Durgesh Sharma Pancholi S/o Late S. N. Sharma, Age 46 years, R/o C/o M. M. Roy, Near North Railway Signal Cabin, Baruipur, Kolkata 700144. 39. Smt. Manika Majumder w/o Shri Majumdar age 54 years, R/o Souhardya Apartment (Flat No.3), 203, Jadu nath Ukil Road, Pachim Putiary, Kudghat, Kolkata 700041. 40. Smt. Pampa Majumdar w/o shri Majumdar age 57 years, R/o Shraddhanjalee Apartment, Flat No.2B (2nd Floor), Balia Main Road, Garia, Kolkata 700094. 41. Shri Kashinath Ghosal S/o Shri Ghosal, Age 47 years, R/o 52/1, R. K. Ghoshal Road, P.O. & P.S. Kasba, Kolkata 700042. 42. Smt. Runa Sen w/o Shri Sen age 58 years, r/o 11/2, Amarnath Road, Uttarpara, Hooghly 712258, West Bengal. 43. Shri M S. DAsgupta S/o Late Raghunath Dasgupta Age 57 years, R/o Flat No.2B AYUVYATAN 35, Purbanchal School Road, Haltu, Kolkata 700078. 44. Smt. Sima Dutta W/o Shri Samar Dutta Age 59 years, R/o 39 B, L. N. Motilal Road, Bakutala, Behala, Kolkata 700061. 45. Shri Aloke Kumar Bajra S/o late R. N. Hajra, Age 57 years, R/o 483/N, Diamond Harbour Road, 1st Floor, Kolkata 700063. 46. Shri Jagat Singh Bhantu S/o Late Bharat Singh, Age 54 years, R/o E/639, Awas Vikas No.1, Krishna Vihar, Panki Road, Kalyanpur, Kanur (U.P.). 47. Shri Shiv Sagar Mahato S/o Late Sukhdeo Mahato Age 54 years, R/o 8/6 Shanti Nagar Defence Colony, Cantonment, Kanpur 208004 (U.P.) 48. Shri Theodor Kujur S/o Late Anthony Kujur, Age 57 years, R/o New LIG-10, Barra-7, Kanpur 208027 (U.P.) 49. Shri Narayan Chandra Dey S/o shri Phani Bhusan Dey Age 57 years, r/o 291/5, Babupurwa Colony, Kanpur 208011 (U.P.) 50. Shri Vinod Kumar Shukla s/o Late S. L. Shukla, age 57 years, R/o House No.843, Sanjay Gandhi Nagar, Naubasta, Kanpur (U.P.) 51. Shri Bharat Singh S/o Late Bahadur Singh Age 38 years, R/o Village & Post Tejam, Distt. Pithoragarh (Uttara Khand). 52. Shri Ram Kumar S/o Shri Bhagwandeen, Age 59 years, R/o Plot No.37, Sanjay Nagar, Naubasta, Kanpur 208021 (U.P.) 53. Shri Jagmohan Prasad Pandey S/o Late narayan Dutt Pandey, Age 62 years, R/o Village Shahajwar, Post Ranigang, Dist Pratapgarh (U.P.) 230 304. 54. Shri Mam Chand S/o Late Munshi Ram, Age 62 years, R/o 232/33, New Kot Gaon, Near Bhola Panwala House, Dist. Bazaria, Dist. Ghaziabad. 55. Shri Anil Kumar Chadha S/o Late Kailash Chander Chadha, Age 62 years, R/o C/o Shr D. K. Chadha, 128/98, G Block, Kidwai Nagar, Kanpur 208011. 56. Shri Om Prakash S/o Late Har Dayal, Age 65 years, R/o Govt. Unnayan Basti, New Colony, G. T. Road, Kalyanpur, Kanpur 208017. 57. Shri Subhash Chandra Sharma S/o Late G. M. Deegan, Age 62 years, R/o 18/17, B1-2, Govind Nagar, Kanpur 208006. 58. Shri J. N. Majumder S/o Late H. N. Majumder, Age 63 years, R/o Radha Housing, Daspara, P.O. Dhalun, Dist 24 Parganas, Flat No.400/3 (C1-D1), Kolkata 700159. 59. Smt. Aparajita Ghosh W/o Shri Pradip Kr. Ghosh, Age 61 years, R/o B-8/47, Kalyani, Dist. Nadia, West Bengal. 60. Shri Swapan Kumar Samanta S/o Late Indranarayan Samanta Age 58 years, R/o Jagannathpur (Satmahal), P.O. Fuleswar, P.S. Uluberia, Dist. Howrah. 61. Shri Vinod Kumar Gupta S/o Late Shukdeo Prasad Gupta, Age 46 years, R/o 1/B, Ashutosh Sil Lane, Kolkata 700009. 62. Shri Anindya Sen S/o Late A. R. Sen Age 45 years, R/o 106/2, Karaya Road, Kolkata 700017. 63. Shri basant Lama, S/o Late Nima Lama, Age 57 years, R/o 72 A, Banerjee Para Road, Paschim putiary, P.O. Kudghat, Kolkata 700041. 64. Shri Ajay Chauhan S/o Late Arjun Singh Chauhan, Age 46 years, R/o 117/M/81, Kakadeo, Kanpur 208019 (U.P.). .. Applicants. (By Advocate : Shri Bharat Bhushan) Versus 1. Union of India represented through the Secretary to the Government of India, Ministry of Finance, Department of Expenditure, North Block, New Delhi. 2. Union of India represented through the Secretary to the Government of India, Ministry of Defence, Department of Defence Production, New Delhi-110001. 3. The DGOF & Chairman, Ordnance Factory Board, Ayudh Bhawan 10-A, Shaheed Khudiram Bose Road, Kolkata-700001. . Respondents (By Advocate : Shri V. S. R. Krishna) 2. OA No.2114/2010 with MA No.1686/2010. 1. DGOF Stenographers Welfare Association (Regn. No.S/1L-46859 of 2007-08) Ordnance Factory Board Hqrs., 10A, Shaheed Khudiram Bose Road, Kolkata-700 001. Thourgh its Secretary (Shri Ramjiban Banerjee S/o Shri R.R. Banerjee) 2. Ratan Basant Applicants. (By Advocate : Shri Bharat Bhushan) Versus 1. Union of India represented through the Secretary to the Government of India, Ministry of Finance, Department of Expenditure, North Block, New Delhi. 2. Union of India represented through the Secretary to the Government of India, Ministry of Defence, Department of Defence Production, New Delhi-110001. 3. The DGOF & Chairman, Ordnance Factory Board, Ayudh Bhawan 10-A, Shaheed Khudiram Bose Road, Kolkata-700001. . Respondents (By Advocate : Shri V. S. R. Krishna) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
By this common order, we are disposing of two OAs (OA No.2102/2010 and OA No.2114/2010) with the consent of the counsel for parties as the controversy in both the cases is same and the Respondents in both the cases are also same.
2. In OA No.2102/2010, 60 Assistant Staff Officers (ASO in short) of Ordinance Factory Board and other Organisations of the Respondents and 4 Staff Officers next promotional grade to ASO in the Headquarters Formation have joined together as Applicants and are seeking pay parity as the Applicants in OA No.2114/2010 have sought for themselves.
3. In OA No.2114/2010, there are two Applicants. The Applicant No.1 is the DGOF Stenographers Welfare Association and the other Applicant is a Stenographer in the DGOF, and have been praying for the pay parity.
4. The controversy in both the cases revolve around the claim of historical pay parity by the Applicants with the Section Officers (SO)/Private Secretaries (PS) of Central Secretariat Service (CSS) and Central Secretariat Stenographers Service (CSSS) (i) to get the pay scale of `7500-12000 notionally w.e.f. 1.1.1996 and actual benefit w.e.f. 3.10.2003; (ii) to get higher grade pay as the officers in CSS and CSSS have been getting in the 6th CPC; and (iii) to get non functional pay scale with grade pay after completion of 4 years in the post as their counterparts get in the CSS and CSSS.
5. It is the case of the Applicants that they have been getting same pay scales and benefits as was available to the CSS & AFHQ Stenographers. The pay parity has been maintained all along in the previous Pay Commissions and the said pay parity was also maintained in the period of 5th CPC. It is stated that during the 3rd, 4th and 5th CPC, the pay scales of the Stenographers and the ASO in OFB was at par with their counterparts in CSS, CSSS and AFHQ. It is further the case of the Applicants that Ministry of Defence with the concurrence of the Ministry of Finance issued a letter dated 27.09.1975 extending the Armed Forces Headquarters Service Scheme to Director General of Ordinance Factories (DGOF) Headquarter Staff and since then the status of DGOF Headquarters Staff are identical with those of AFHQ & CSS/CSSS. It is further stated that the DOP&T OM dated 13.11.2003, the non functional scale of `8000-275-13500 was introduced for CSS Officers on their completion of 4 years of approved service in the grade. This non functional grade was not granted to the Applicants. Thus, the Applicants represented to get the non functional pay scale after 4 years but the representations of the Applicants were though considered but was replied that the 6th CPC having been constituted they should wait till the recommendations of 6th CPC. Relief now claimed, was therefore, pending awaiting the recommendations of the 6th CPC. Further it is averred that in Para 3.1.14 of 6th CPC recommendations, the traditional historical parity in pay scales of the Applicants with those of CSS/CSSS and AFHQ were disturbed by creating dichotomy which did not exist earlier. The Applicants have been sanctioned under 6th CPC the pay scale including basic pay and grade pay as per the said Paragraph 3.1.14 of the 6th CPC but the claim of the Applicant is that they are entitled to get the pay scale as per Para No.3.1.9 of 6th CPC recommendations. It is stated that accepting the demand of the Applicants, the Ministry of Defence recommended to the Ministry of Finance for maintaining the pay parity for the Applicants vide their letter dated 26.12.2008 but the said recommendation was not accepted by the Ministry of Finance (Department of Expenditure). Therefore, the Ministry of Defence has sent them a letter dated 3.08.2009 to the Applicants. By impugning the said letter and claiming the historical pay parity with the Stenographers of CSS/CSSS and the AFHQ, the Applicants are before the Tribunal under Section 19 of the Administrative Tribunals Act, 1985. Reliefs in both OAs being similar, we take the extract of the relief(s) in OA NO.2102/2010, which read as follows:-
(i) Setting aside the impugned order dated 03-08-2009 of Ministry of Defence, Department of Defence Production , D(Fy.1), New Delhi vide M of D ID No.15(8)/97-D(Fy-1) dated 03-08-2009 conveying decision of Ministry of Finance, Department of Expenditure through Defence/Finance and to grant consequential benefits as has already been granted to the Section Officers/Private Secretaries of CSS and CSSS and also to Asstt. Civilian Staff Officers/Private Secretaries in AFGQCS/AFHQSS and equivalent cadres in other departments including the benefit of higher grade pay after completion of four years of service as shown below;
(ii) To grant pre-revised pay scale of Rs.7500-12000/- to Private Secretaries (PS) of OFB HQrs. Formation notionally with effect from 01.01.1996 with actual benefit be granted w.e.f. 3rd October, 2003 at par with Section Officers of CSS and also at par with Private Secretaries (PS) in AFHQSS and equivalent cadres in other departments;
(iii) To grant the non-functional pay scale of Rs.8000-275-13500 (pre-revised) after completion of four years to the Private Secretaries (PS) of OFB Hqrs. Formation at par with Private Secretaries (PS) in AFGQSS and equivalent cadres in other departments;
(iv) To grant corresponding pay band with grade pay as recommended by the 6th CPC and approved by the Government vide Section II, Part B of CDS (RP) Rules, 2008.
6. Shri Bharat Bhushan, learned Counsel for the Applicants in both OAs terming the impugned decision dated 3.8.2009 as illegal and highlighting the historical comparison between the Applicants and their counterparts in CSS/CSSS, anchored his contention on the following grounds. (i) There has been historical pay parity for the Applicants along with the CSS/CSSS/AFHQ Officers. He referred to the Tables in the OA to bring home that in the 3rd CPC period, the pay scale of Stenographers in the Central Secretariat, AFHQ and OFB Headquarter Formation was `330-560, Personal Assistants Pay Scale was `425-800; Private Secretaries `650-1200. In the 4th CPC, the pay was revised to `1200-2040, `1400-2600 (`1640-2900) and `2000-3500 for the Stenographers, PA and PS respectively. Insofar as 5th CPC is concerned pay scale for the Stenographers, PA and PS were fixed as `4000-6000; `5500-9000 and `6500-10500 respectively. However, in case of pay scale of PSs, this upgradation was w.e.f. 3.10.2003 to `7500-12000 (`8000-13000 on completion of 4 years), but similar upgradation was not done in OFB Head Quarters Formation. Shri Bhushan submitted that the historical pay parity upto 4th CPC was disturbed in the year 2003 and perpetuated in the 6th CPC to the disadvantage of the Applicants. (ii) On the basis of the above ground of historical pay parity, the counsel for the Applicants submits that the in the 6th CPC, the Applicants are covered under Para 3.1.9 but the Respondents have treated the Applicants as non-secretariat organization and extended the pay scale envisaged in Para 3.1.14. This, he terms as illegal as the nature of work, responsibilities are same as the Officers of the Secretariate discharge. (iii) Shri Bhushan submits that a discriminatory and contradictory stand is anti thesis to the fairness in law. It is stated that the principle of equal pay for equal work is applicable for the Applicants. Artificial distinction between Secretariat and non-Secretariat being contrary to the doctrine of pay parity, the intervention of the Tribunal has been sought in the present OA. Two sets of examples were cited by the Counsel for the Applicants where the Tribunal has extended the pay parity principle. Thus, Shri Bhushan urges that as the non-functional selection grade of `8000-13500 was extended to the Officer Supervisors (OS) in case of CBI (a non-Secretariat Office) pursuant to the judgment in Union of India and Others vs. S. C. Karmakar WP(C) No.7475/2007 decided on 10.10.2007 affirmed by the Honble High Court of Delhi; and Research and Analysis Wing, and the Section Officers and Private Secretaries of the Central Administrative Tribunal [vide judgment dated 19.02.2009 in OA No.164/2009 in the case of S. R. Dheer and Others versus Union of India and Others], so also similarly placed Applicants deserve to be granted the pay upgradation notionally w.e.f. 1.1.1996 and actual financial benefit w.e.f. 3.10.2003. Consequently, he contends that the Applicants would be entitled to get the benefits of Para 3.1.9 of the 6th CPC recommendation. Shri Bharat Bhushan, therefore, pleads to allow the Application.
7. On receipt of the notice, the Respondents have filed their reply affidavit by controverting the grounds taken by the Applicants in the OA. Shri V. S. R. Krishna, learned Counsel for the Respondents submits that the Respondents have examined the issues raised by the Applicants and issued the letter dated 3.08.2009. His contention is that the Applicants are working in Non-Secretariat Organisation. Para 3.1.14 of CPC recommendation would be applicable. ASO and Private Secretaries of OFB were in the prescribed scale of `6500-10500 had been fixed in the appropriate pay scale. The Respondents examined in great detail the Applicants representation forwarded by OFB in its letter dated 26.12.2008 and have passed the order dated 03.08.2009. His contention is that there is no historical parity of the Applicants of the OFB with the Private Secretaries of the CSS, CSSS and AFHQ. He drew our attention to Para 2 of the impugned order to say that 6th CPC has examined the issue of pay parity between Secretariat and non Secretariat Services and taking into account the functional considerations and relativities and has stated that the parity in pay scales beyond the grade of Assistants may not be possible to be justified because the hierarchy and career progress will be different. He, therefore, drew our attention to the relevant paragraphs of the 6th CPC to submit that the pay parity claim would not be admissible.
8. Referring to S. R. Dheers case (supra), he submits that the present case is not the same as that of S.R. Dheer. The PSs in CAT are not on the same footing as that of the Applicants in both the OAs in the sense that the work of the Tribunal is of judicial nature and the duties and responsibilities of the PSs attached to the Chairman, Vice Chairman and Member of the Tribunal are more onerous than even those working in similar posts in OFB. He also submits that the Grade Pay of the Applicants have been revised from `4200 to `4600. Therefore, the Applicants should have no grievance as the grade pay difference between `4800 and `4600 is very minimum. In support of the contention that Tribunal and Courts are not the competent authority to direct fixation of pay scales and grant of pay parity, as such functions come within the ambit of executive, Shri Krishna placed his reliance in various judgments of Honble Supreme Court.
9. He placed his reliance on the following rulings:-
The concept (of equal pay for equal work) requires for its applicability complete and wholesale identity between the two groups (State of Haryana vs. Tilak Raj 2003 AIR SCW 3382, para 13). (Annexure-1) Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge (State of Haryana vs. Haryana Civil Secretariat Personal Staff Association, Civil Appeal no.3518 of 1997 decided by Supreme Court on 10.07.2002) (Annexure-1) The principle (equal pay for equal work) becomes inapplicable in case of qualitative differences: functions may be same but the responsibilities make a difference. It was specifically directed that In this case, different pay scales fixed for Stenographers (Grade 1) working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held valid, not violating Art. 14 and as not being contrary to the principle of equal pay for equal work. (Federation of All India Customs and Central Excise Stenographers vs. Union of India, AIR 1988 SC 1291 (1297): (1988)3 SCC 91) (Annexure-2).
The most important and crucial test is whether the two categories discharge similar duties, functions and responsibilities, qualitatively speaking also. (State of MP vs. Pramod Bhartiya, (1993) 1 SCC 539). (Annexure-3).
In State Bank of India vs. K. P. Suhbaiah, 2003 AIR SCW 3436, para 23, it has been reiterated that Ordinarily, a pay structure is evolved keeping in mind several factors, for example (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational technical qualifications required, (v) avenue of promotion, (vi) nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employers capacity to pay etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well (See Secretary Finance Department and Others vs. West Bengal Registration Service Association and Others (AIR 1992 SC 1203) (Annexure-4).
In the case of Harbans Lal and Others vs. State of H. P. (Writ Petition (Civil) no.648/87 decided on 01.08.1989) it was held by Honble Supreme Court that pay scale can only be compared with those employed under the same management or establishment. (Annexrue-5)
(b) It is submitted further that on the aspect of judicial review of the matters pertaining to pay scales etc. the various directions of Honble Supreme Court that are relevant are as below:
(i) It has been ruled by Honble Supreme court that the recommendations of an expert body which include the pay scales recommended by Pay Commissions should not be disturbed as the same depend on several factors and the balancing so done by the expert bodies if disturbed would lead to a cascading effect. (State of Bihar vs. Bihar Vetrinary Association, AA No.1507 of 2008 decided on 22.02.2008). (Annexure-6).
(ii) It has further been ruled that value judgment for applying the principle of equal pay for equal work has to be weighed by the administrative authorities and that courts should exercise restraint. (Union of India vs. Hiranmoy Sen, CA No.7232 of 2003 decided on 12.10.2007) (Annexure-7).
(iii) In the case of Supreme Court Employees Welfare Association vs. Union of India, AIR 1990 SC 33, it was ruled by Honble Supreme Court that it is not the business of the Courts to fix the pay scales of the employees. (Anexure-8).
(iv) In the case of Shiba Kumar Dutta vs. Union of India, AIR 1998 SC 2911, para 3, it was directed that the question of equation of posts and fitment in a particular scale of pay must be left to Expert Committees and the Government. (Annexure-9). He, therefore, submits that the Original Application deserves to be dismissed.
10. Before we examine the issues raised in the OA, it is apt for us to get guidance of legally well settled position in the matters of pay parity, historical parity of pay scales and equal pay for equal work. Equal pay for equal work has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution of India, as held by Honble Supreme Court in Grih Kalyan Kendra Workers' Union Versus Union of India, [(1991) 1 SCC 619], and also Union of India Versus Dineshan K.K., [(2008) 1 SCC 586] and State of Kerala Versus B. Renjith Kumar [(2008) 12 SCC 219]. However, as observed by the Honble Apex Court in State of Orissa Versus Balaram Sahu [(2003) 1 SCC 250] pay parity would depend upon not only on the nature or volume of work but also on quality of work as regards the reliability and responsibility as well. Different pay scales may be prescribed on the basis of such reliability and responsibility. This ratio has also been reiterated by Honble Apex Court in State of Bihar Versus Bihar State Plus-2 Lecturers Assns.,[(2008) 7 SCC 231].
11. Moreover, in S.C. Chandra and Others Versus State of Jharkhand and Others [2007-8-SCC-279], the Honourable Supreme Court has exhaustibly dealt with the issue of pay parity and powers of the Courts and Tribunal to interfere in the matters of pay fixation and if so on what grounds. It is appropriate for us to take extract of the relevant paragraphs of the said judgment 15. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s, e.g. Dhirendra Chamoli and another vs. State of U.P. (1986) 1 SCC 637, Surinder Singh vs. Engineer-in-Chief, C.P.W.D. (1986) 1 SCC 639, Randhir Singh vs. Union of India (1982) 1 SCC 618 etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli's case (supra) this Court granted to the casual, daily rated employees the same pay scale as regular employees.
16. It appears that subsequently it was realized that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. Government employees of one State were claiming parity with Government employees of another State.
17. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
18. Thus, in State of Haryana vs. Tilak Raj (2003) 6 SCC 123, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
19. In State of Haryana and others vs. Charanjit Singh and others (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.
20. In State of Haryana & another vs. Tilak Raj & others (2003) 6 SCC 123, the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:
"A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-a-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one.
'Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula".
21. In State of U.P. and others vs. Ministerial Karamchari Sangh, AIR 1998 SC 303, the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work.
22. In State of Haryana vs. Jasmer Singh and others AIR 1997 SC 1788, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the 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.
23. In Federation of All India Customs and Excise Stenographers (Recognized) and others vs. Union of India and others AIR 1988 SC 1291, this Court observed :
"In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula".
24. It may be mentioned that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408.
25. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book and the Spirit of Laws' still broadly holds the field in India today. Thus, in Asif Hameed vs. State of Jammu and Kashmir, [AIR 1989 SC 1899] a three Judge bench of this Court observed (vide paragraphs 17 to 19) :
"17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
.
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."
26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).
27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal vs. Tarun K. Roy and others (2004) 1 SCC 347.
28. Similarly, in State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and others vs. Pradip Kumar Dey (2000) 8 SCC 580.
12. Guided by the law set in various judgments of the Honble Apex court, we would like to identify the principles which run through those judgments on the pay parity controversy. Those are as follows:-
(a) pay scale fixation is purely executive function and courts and Tribunals should not direct in fixing pay scales;
(b) the principle of equal pay for equal work should not be applied unless there is a complete and wholesale identity between the two groups;
(c) even to find out the wholesale and complete identity, the best forum is an expert body like Pay Commission;
(d) the Pay Commission which goes into at great depth on the pay anomalies and the issues of pay parity undertake in depth examination from various angles with full facts on the issues, is the appropriate authority to decide such matters;
(e) it is the claimants of equality to substantiate the basis of equivalence and resultant discrimination;
(f) even if the persons holding same post doing similar work but if the mode of recruitment, qualification, promotion etc. are different, pay parity would not be admissible; and
(g) persons doing the same work in different organizations may have different responsibilities, reliability, confidentiality which are sufficient reasons for pay disparity;
13. In view of the above legal setting on pay parity and equal pay for equal work, it is noted that 6th CPC has already considered the issue raised by the Applicants and the 6th Central Pay Commission has recommended two distinct and exclusive pay scales and grade pay in Paragraphs 3.1.9 and 3.1.14 which read as follows:-
3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in all Secretariat Services(including CSS as well as non participating ministries/departments/organizations) to Rs.7500-12000 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS, the Section Officers in other Secretariat 161 Offices, which have always had an established parity with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group-B corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 on completion of four years service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified that the pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relativities which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs.4800 in pay band PB-2 is, otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis-mutandis to post of Private Secretary/equivalent in these services as well. The structure of posts in Secretariat Offices would now be as under:-
Post Pre revised pay scale Corresponding revised pay band and grade pay LDC Rs.3050-4590 PB-1 of Rs.4860-20200 along with grade pay of Rs.1900 UDC Rs.4000-6000 PB-1 of Rs.4860-20200 along with grade pay of Rs.2400 Assistant Rs.6500-10500 PB-2 of Rs.8700-34800 along with grade pay of Rs.4200 Section Officer Rs.7500-12000 Rs.8000-13500* (on completion of four years) PB-2 of Rs.8700-34800 along with grade pay of Rs.4800.
PB-2 of Rs.8700-34800 along with grade pay of Rs.5400* (on completion of four years) Under Secretary Rs.10000-15200 PB-3 of Rs.15600-39100 along with grade pay of Rs.6100 Deputy Secretary Rs.12000-16500 PB-3 of Rs.15600-39100 along with grade pay of Rs.6600 Director Rs.14300-18300 PB-3 of Rs.15600-39100 along with grade pay of Rs.7600 * This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organisations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. would therefore be covered. .. .. .. .. 3.1.14 In accordance with the principle established in the earlier paragraphs, parity between Field and Secretariat Offices is recommended. This will involve merger of few grades. In the Stenographers cadre, the posts of Stenographers Grade II and Grade I in the existing scales of Rs.4500-7000/Rs, 5000-8000 andRs.5500-9000 will, therefore, stand merged and be placed in the higher pay scale of Rs.6500-10500. In the case of ministerial post in non- Secretariat Offices, the posts of Head Clerks, Assistants, Office Superintendent and Administrative Officers Grade III in the respective pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500- 10500 will stand merged. The existing and revised structure in Field Organization will, therefore, be as follows:-
(in Rs.) Designation Present pay scale Recommended pay scale Corresponding Pay Band & Grade Pay Pay band Grade Pay LDC 3050-4590 3050-4590 PB-1 1900 UDC 4000-6000 4000-6000 PB-1 2400 Head Clerk/Assistants/ Steno Grade II/equivalent 4500-7000/ 5000-8000 Office Superintendent/ Steno Grade I/equivalent 5500-9000 Superintendent/ Asst. Admn.
Officer/ Private Secretary/ equivalent 6500-10500 Administrative Officer Grade II /Sr. Private Secretary/equ. 7500-12000 7500-12000 entry grade for fresh recruits) 8000-13500 (on completion of four years) PB-2 4800 (5400 after 4 years) Administrative Officer Grade I 10000-15200 10000-15200 PB-2 6100 Note 1 The posts in the intermediate scale of Rs.7450-11500, wherever existing, will be extended the corresponding replacement pay band and grade pay.
Note 2 The existing Administrative Officer Grade II /Sr. Private Secretary/equivalent in the scale of Rs.7500-12000 will, however, be placed in the corresponding replacement pay band and grade pay till the time they become eligible to be placed in the scale of Rs.8000-13500 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.5400.
14. It is stated by the Respondents that the Pay Band-3 with Grade Pay of `5400 is admissible only in cases of those services where a non-functional upgradation in the pre-revised scale of `8000-13500 was available on completion of 4 years of service. It is noted that the Applicants did not have such dispensation in the 5th CPC and subsequent modification done in 2003 for other Secretariat Services. As such the said Provision applicable to CSS/CSSS and AFHQ would not be admissible for the Applicants.
15. It is trite law that even if the persons doing the same work having the same nomenclature like PSs, ASOs and Stenographers, the pay parity need not be admissible as their recruitment, educational qualification, experience, promotion prospects, responsibilities, reliability and confidentiality matters which they may be handling would be different from other groups. These are sufficient reasons to maintain pay disparity between two groups even with same designation. In the present case, we find that the pay disparity which was existing during 5th CPC period has been continued in the 6th CPC. Thus, we do not find any ground to claim historical parity. Therefore, we do not find any legal infirmity in the orders passed by the Respondents on 03.08.2009.
16. It is contended on behalf of the Applicants that their case is fully covered by the orders of this Tribunal in S. R. Dheers case (supra). We have gone through the judgment and note that the Tribunal framed 3 issues and after detailed analysis of the law on the subject of pay parity passed orders on those issues. We take extract of the relevant parts of the order which read as follows:-
16. For proper adjudication of the case, the following issues may be framed:
i) Whether the CAT has jurisdiction in judicial review to interfere in the matter concerning parity of pay on wrong fixation of pay by the Government, pursuant to the recommendations by the expert body like Pay Commission?
ii) Whether the PSs/SOs in CAT have had historical parity with their counterparts in CSSS/CSS?
iii) Whether the decision taken by the Ministry of Finance to apply para 3.1.14 of the recommendations as accepted is legally justifiable? . .. ..
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 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. No costs.
17. On a careful examination of the above in the background of the judgment in S. R. Dheers case (supra), we are of the opinion that Respondents analysis is logical and clear. Dissimilarities have been brought out between the Applicants in both OAs and the PSs of the Central Administrative Tribunals. Thus, the Applicants have failed to convince us on this ground for our interference.
18. It is noted that the Chapter 3.1 of the 6th CPC recommendation dealt very comprehensively the issues brought before it on the subject of disparity between Secretariat and Field Offices. The role and responsibilities of the Secretariat and Field Officers have been identified to be different. Parity of certain posts, disparity in other posts, anomaly in pay scale have been analysed in Para 3.1.7 and the 6th CPC has given its recommendations in Para 3.1.8 to 3.1.15. para 3.1.9 provides the pay structure of LDC to Director levels in the Secretariat in Pay bands and grade pay whereas Para 3.1.14 gives the pay structure for non-Secretariat Organisation. On our direction, the Respondents have provided a copy of Swamys Compilation of 6th CPC Report Part I pages 141 to 147 and Swamys Manual on Office Procedure 2006 and 2009. In the definition Chapter at entry 53, Secretariat Offices are defined as those which are responsible for formulation of the policies of the Government and also for the execution and review of those policies. As per this definition, the Organisations where the Applicants are working cannot be termed as Secretariat. On the contrary, the Non-Secretariat Organisations where the Applicants are working are either attached offices or subordinate offices. Definition of the attached offices are generally responsible for providing executive direction required in the implementation of the policies laid down by the department to which they are attached. They also serve as repository of technical information and advise the department on technical aspects of question dealt with by them. The meaning of subordinate offices signifies that these function as field establishments or as agencies responsible for the detailed execution of the policies of Government. They function under the direction of an attached office or directly under a department. Having examined the definitional aspects and the averments made by the Respondents, we are of the opinion that there is exist distinction in the works, functions and responsibilities between the Secretariat and non-Secretariat Organisation. If there is functional dissimilarities, there is bound to be financial disparity in pay and allowances.
19. Considering the totality of the facts and circumstances of the case in both OAs, we find that Applicants belong to Non-Secretariat Organisation. We also come to the considered conclusion that the distinction brought in the year 2003 for CSS/CSSS/AFHQ is not applicable to the Applicants. All the Applicants would be covered by the pay scale prescribed in Para 3.1.14 of the 6th CPC re commendations and accepted by the Government.
20. Having considered the totality of facts and circumstances of the case and guided by the well settled position in law in the subject of pay parity, we come to the considered conclusion that the Respondents have well defended their case and the Applicants do not have a case in their support. Resultantly, we uphold the order dated 3.08.2009 passed by the Respondents. The Applicants are not entitled to (a) the pay scale of `7500-1200 w.e.f. 1.1.1996 notionally and w.e.f. 3.10.2003 the actual benefits, (b) non functional pay scale of `8000-275-13500 (pre-revised) and (c) the corresponding pay bands and Grade pay under the 6th CPC.
21. Thus, the Original Application being bereft of merits is dismissed, leaving the parties to bear their respective costs. Registry is directed to keep a copy of this order in each of the OAs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
/pj