Central Administrative Tribunal - Lucknow
S. K. Verma vs Union Of India Through Secretary on 10 October, 2011
Central Administrative Tribunal Lucknow Bench Lucknow Original Application No. 143/2004 This, the 10th day of October, 2011 Honble Justice Shri Alok Kumar Singh, Member (J) Honble Shri S. P. Singh, Member (A) S. K. Verma, aged about 50 years, son of Late B.D. Verma, resident of (C/0O.P.-Gupta, 1667 Hamirpur, Lakhimpur Kheri) Village & Post-Udaipur(Mahewa), Lakhimpur Kheri, Pin 262708. Applicant By Advocate Shri R. C. Singh. Versus 1. Union of India through Secretary, Animal Husbandry Ministry of Agriculture, Department of A& H & Dairying, Krishi Bhawan, New Delhi. 2. The Dy. Secretary to the Government of India, Ministry of Agriculture Department of a/H. & Dairying, Krishi Bhawan, New Delhi. 3. The Director, Central Cattle Breeding Farm, Andesh Nagar, Lakhimpur Kheri. Respondents By Advocate Shri S. P. Singh. ORDER
By Honble Shri S. P. Singh, Member (A) This O.A. has been instituted by the applicant praying following relief(s):
(i) Issue order or direction to opposite party No. 2 to revise pay scale of applicant (from) 1.1.86 on the similar facts and grounds as given to Shri M. Arjunan in pursuance of order passed by the Honble High Court, Madras.
(ii) To issue order or directions to the opposite parties to revise and pay to the petitioner the pay in the scale of Rs. 4500-7000/- with effect from 1st January 1996 and also to pay arrear till today.
(iii) To any other order or direction in favour of the petitioner as this Honble Tribunal may think proper.
(iv) To award cost of the original application.
(v) To issue order or direction setting aside the order of rejection dated 22/24.9.1999passed by opposite party No. 1 containing Annexure No. A1 to this O.A.
2. The applicant had earlier filed O.A. No. 494/1998 seeking following relief(s):-
(i) To issue or direction to opposite parities to revise the pay scale to the petitioner w.e.f. 1.1.86 in the scale of Rs. 1350-2200 also to pay the arrears w.e.f. 1.1.86 till today.
(ii) To issue order or direction to the opposite parties to revise and pay to the petitioner. The pay in the scale of Rs. 4500-7000/-w.e.f. 1.1.96 and also to pay arrear till today.
(iii) To any other order or direction in favour of the petitioner as this Honble Tribunal may think proper.
(iv) To award cost of the petition.
3. The Original Application No. 494/1998 was decided on 18.12.1998 directing the respondents to decide the representation of the applicant within two months.
4. The applicant has pleaded that the certified copy of the order dated 22.09.1999 Annexure A-1 to the O.A. was served upon the respondents as his representation was not disposed of within the time limit given by this Tribunal. The applicant accordingly filed contempt petition No. 33/1999 to ensure compliance of the order of the Tribunal at Annexure-No. 1 to the O.A.
5. The applicant approached the respondents to give similar pay scale as given to one Shri M. Arjunan claiming that the case of M. Arjunan is similar. Mr. Arjunan had also filed an O.A. before Central Administrative Tribunal, Chennai Bench for treating him as Medical Compounder. The Original Application filed before C.A.T. Chennai Bench was decided against the applicant Mr. Arjunan. Feeling aggrieved, Mr. Arjunan filed W.P. before the Honble High Court, Chennai. The said W.P. was decided in favour of Mr. Arjunan treating him as Medical Compounder. The Central Government feeling aggrieved by the Honble High Courts judgment and order filed SLP No. 817 of 2002 before the Honble Supreme Court against the judgment and order of the Honble High Court dated 18.2.2002 in Writ Petition No. 4223/2002. This SLP was dismissed on 28.10.2002 by the Honble Supreme Court. The applicant further pleads that this order of the Hon'ble Supreme Court judgment dated 28.10.2002 came into the knowledge of the applicant and thereafter, he filed the present O.A. He therefore, pleads that the present O.A. is within limitation as prescribed under Central Administrative Tribunal Act considering the facts and circumstances mentioned above. The applicant had requested for copies of judgments in Mr. Arjunans case but the opposite parties did not give the applicant copy of judgment of Honble High Court but gave him copy of judgment of Honble Supreme Court which he has annexed at Annexure No. 3.
6. The representation of the applicant dated 27.05.1998 was decided by a speaking order dated 22.9.1999(Annexure SA-1) whereby the demand of the applicant regarding up-gradation of pay scale of the post of Medical Compounder from Rs. 1200-2040 to Rs. 1350-2200 from 1.1.1986 and from 4000-6000 to Rs. 4500-7000 from 1.1.1996 was considered in consultation with Ministry of Finance (Department of Expenditure) and was not agreed to in the light of the reasons mentioned therein and the representation was, therefore, rejected. The reasons given in the speaking order dated 22/24.9.1999,Annexure-SA-1(filed along with supplementary affidavit dated 22.4.2004) are noted below:-
(a) As per the recommendations of the Fourth Pay Commission, the scale of pay of Rs. 1350-2200 is admissible to the post of Pharmacist and not to the post of Medical Compounder held by the applicant. The Fifth Pay commission have recommended the regular replacement scale of pay of Rs. 4500-7000 for the post of Pharmacist and not for the post of Medical Compounder
(b) When the grant of pay scale of Rs. 1350-2200 (after Fourth Central Pay Commission) and scale of Rs. 4500-7000 (after Vth Central Pay Commission) to the Compounder in Central Cattle Breeding Farm, Alamadhi came to the notice of the Ministry of Finance (Department of Expenditure) they had taken the view that the grant of higher scales was irregular and needs to be corrected. Necessary corrective action for granting the correct scale to the Compounder at CCBF, Alamadhi is being taken in this regard separately, so as to introduce parity in the scales of Compounder at CCBF, Alamadhi and CCBF, Andesh Nagar.
(c) The qualifications prescribed in the Recruitment Rules for the post of Medical Compounder in the Central Cattle Breeding Farm, Andesh Nagar do not provide for Registration as a Pharmacist.
7. The respondents first filed a preliminary objection through M.P. No. 674/2004 of the O.A. on 19.8.2004 regarding non-maintainability of the O.A. The respondents pleaded firstly that the present O.A. has been filed after lapse of 5 years and the applicant has not impugned the order dated 22/24.9.1999(Annexure-P-1) passed by the respondents on representation of the applicant and secondly, the present O.A. is also barred by applying the principle of resjudicata. However, O.A. was later amended and order dated 22/24.9.1999 is now challenged.
8. The respondents further pleaded that while rejecting the claim of the applicant by order dated 22.9.1999, (Annexured-P-1) the department found that as per recommendation of the Fourth Pay Commission, the scale of Rs. 1350-2200/- is admissible to the post of Pharmacist and not to the post of Medical Compounder held by the applicant. They have said in their pleading that the applicant was appointed on the post of Medical Compounder and not to the post of Pharmacist. He was accordingly given the scale of Rs. 1200-2040 w.e.f. 1.1.1986. The scale which the applicant is claiming i.e. Rs. 1350-2200 is the scale for the post of Pharmacist and not of the post of Medical Compounder. The Fifth Pay Commission have recommended regular replacement scale of pay of Rs. 4000-7000/- for the post of Pharmacist and not for the post of Medical Compounder. Moreover, the qualification prescribed in recruitment rules for the post of Medical Compounder in Central Cattle Breeding Farm, Andesh Nagar do not provide for registration as a Pharmacist.
9. The respondents in the preliminary objection have further said in para-6 that the case of Mr. M. Arjunan working at Central Cattle Breeding Farm, Chennai is entirely different from the present applicants case. The brief facts of the Mr. M. Arjunans case are that vide order dated 3.11.1999 Ministry withdrew the scale of pay of Rs. 1350-2200(pre-revised) granted to Mr. M. Arjunan, working at Almadhi, Chennai with effect from 1.1.1986 and re-fixing his scale of pay as Rs. 1200-2040(pre-revised) with effect from 1.1.86 and consequently in the replacement scale of pay of Rs. 4000-6000 with effect from 1.1.96. The aggrieved Mr. M. Arjunan filed an Original Application No. 1073 of 1999 before the Chennai Bench of Honble Central Administrative Tribunal. The aforesaid O.A. was finally disposed of by the Honble Tribunal vide order dated 19.1.2000, setting aside the impugned order of withdrawal of earlier pay scales. It is relevant to mention here though several grounds were raised in the aforesaid O.A. but the Honble Tribunal while disposing the O.A. observed that, we are not inclined to enter into the merits of the same at this stage. Whether the applicant is entitled to the scale of pay already given or not and the applicants pay can re-fixed with effect 1977, is to be decided only later stage. . When a pay scale has been given to the applicant right from 1977. It cannot be taken away without issuing notice to the applicant.
A photo copy of the order and judgment passed by Chennai Bench of Honble Tribunal in O.A. No. 1073 of 1999 M. Arjunan Vs. UOI *& others being annexed here with as Annexure No. (P-2).
10. On receipt of the order passed by Chennai Bench of Tribunal in O.A. No. 1073 of 1999, the department issued a notice on 6.4.2000 to Mr. M. Arjunan, asking him to make an explanation regarding the withdrawal of scale of pay of Rs. 1350-2200/-. Mr. M. Arjunan submitted a representation and order was passed by department on 8.7.2000 considering his explanation, re-fixing the scale of Mr. M. Arjunan as Rs. 4000-6000/-. This was again challenged before CAT, Chennai Bench in O.A. No. 790 of 2000, which has been allowed by Honble Tribunal vide order dated 19.12.2000. A copy of order and judgment dated 19.12.2000 being annexed as Annexure No.( P-3).
11. The order and judgment passed by Chennai Bench of Honble Tribunal in O.A. No. 790 of 2000 M. Arjunan vs. UOI & Others was also upheld by Honble High Court, Madras in W.P. No. 4223 of 2002, Union of India and another Vs M. Arjunan & another and Honble Supreme Court in SLP No. 8173 of 2002 Union of India and another Vs. M. Arjunan. A photo copy of order and judgment passed by the Chennai Bench of Honble High Court and Honble Supreme Court have been annexed herewith as Annexure No. P-4 & P-5.
12. Vide M.P. No. 2058/2004, counter affidavit was filed on 6.9.2004. The respondents elaborated and reiterated the pleadings taken in preliminary objection mentioned above. It has been pleaded that applicant filed earlier O.A. No. 494/1998 (S.K. Verma Vs. U.O.I) on almost same facts and claiming same reliefs which are stated as under:-
(i) To issue or direction to opposite parties to revised the pay scale to the petitioner w.e.f. 1.1.86 in the scale of Rs. 1350-2200 also to pay the arrears w.e.f. 1.1.86 till today i.e. from the date of filing O.A. No. 494/1998.
(ii) To issue order or direction to the opposite parties to revise and pay to the petitioner. The pay in the scale of Rs. 4500-7000 w.e.f. 1.1.96 and also to pay arrear till today i.e. from the date of filing of O.A. No. 494/1998.
(iii) To any other order or direction in favour of the petitioner as this Honble Tribunal may think proper.
(iv) To award cost of the petition.
13. In compliance of the order and judgment dated 16.12.1998 in O.A. No. 494/1998 , the respondents vide reasoned and speaking order dated 22.9.99 disposed of the representation by rejecting the claims (Annexure CA-1).
14. In regard to the case of the Mr. M. Arjunan, the Medical Compounder in the Central Cattle Breeding Farm, Alamadhi, Chennai to which the applicant claimed the parity, it was found by the department that when grant of pay scale of Rs. 1350-2200 (after Fourth Pay Commission) and scale of Rs. 4500-7000 (after Fifth Pay Commission) to the Compounder in the Central Cattle Breeding Farm, Alamadhi came to the notice of the Ministry of Finance( Department of Expenditure), they had taken the view that the grant of higher scales was irregular and needed to be corrected and necessary corrective action accordingly for granting the correct scale to the Compounder at CCBF, Alamadhi was, so as to introduce parity in the scales of Compounder at CCBF, Alamadhi and CCBF, Andeshnagar.
15. Subsequently, Mr. M. Arjunan aggrieved by the action of the respondents filed an Original application No. 1073 of 1999 in CAT, Chennai Bench. The observations of CAT Chennai Bench are as under:-
We are not inclined to enter into the merits of the same at this stage. Whether the applicant is entitled to the scale of pay already given or not and the applicants pay can re-fixed with effect from 1977, is to be decided only later stage. .......... When a pay scale has been given to the applicant right from 1977. It cannot be taken away without issuing notice to the applicant. (Annexure CA-2).
16. On receipt of the order passed by the CAT Chennai Bench in O.A. No. 1073 of 1999, the respondents issued a notice on 6.4.2000 to Mr. Arjunan, asking him to make an explanation regarding withdrawal of the scale of pay of Rs. 1350-2200 and Mr. M. Arjunan submitted a representation and order was passed by department on 8.7.2.2000, re-fixing the scale of pay of the applicant as ; Rs. 4000-6000. It is further stated that Mr. M. Arjunan again challenged the same before the Chennai Bench of this Tribunal in O.A. No. 790 of 2000, which was allowed by Honble Tribunal vide order dated 19.12.2000(Annexure CA-3).
The order of CAT Chennai Bench was upheld by Honble High Court, Madras in w. P. No. 4223 of 2002(Annexure CA-4) and by the Honble Supreme Court in SLP No. 8173 of 2002 (Annexure CA-5)
17. In order to distinguish the case of the present applicant Sri S. K. Verma from Mr. M. Arjunan, the respondents in their C.R. have given following reasons based on certain observations made by the CAT, Chennai Bench:
(i) In para 6 of the aforesaid judgment it has been mentioned that the applicant , (Mr. M. Arjunan) is a qualified medical compo under (Pharmacist). Admittedly as early as on 5.3.77 the question of scale of pay came up for consideration and the Government of India granted the scale of pay of the qualified Compounder as Rs. 330-560 and that of a un-qualified Compounder is Rs.330-480/- while granting the above pay scale, the Government of India took note of the recommendations of the Third Pay Commission, subsequently the very same question came up for consideration at the time of recommendations by the 4th Pay Commission. The applicant (Mr. M. Arjunan) was granted the pay scale of Rs. 1350-2200/- and the same was granted in consultation with the Director General of Health Services.
(ii) In para 7 of the aforesaid judgment it has been mentioned that When a pay scale has been granted after due deliberation and after consultation with the Government of India , the respondents cannot now turn round and contend that they have fixed the pay wrongly from 1990 onwards. The respondents themselves have produced the documents to show how the pay scale of the applicant, Mr. M. Arjunan was fixed. On 24.2.88 (page 46 of the paper book), the second respondent wrote letter to then Deputy Secretary, Ministry of Agriculture, wherein it is stated that the applicants Mr. M. Arjunan case has to be decided on its own merit without any generalization; The Government of India also took note of the fact that the applicant is holding a diploma in Pharmacy and therefore he was called as Pharmacist. Another letter was written by the second respondent on 9.8.1998 stating that the recommendations of the Fourth Pay Commission were accepted by the Govt. Of India in toto. And therefore, the applicant, Mr. M. Arjunan has to be given the scale of pay of Rs. 1350-2200 which scale was granted to the Pharmacist. By letter dated 21.6.1989, it was reiterated that the applicants case should not be clubbed with others as others are not having the same training. The Pay......
(iii) That in Para of the aforesaid order and judgment it has been observed by the CAT, Chennai Bench in M. Arjunans case that it is clear that the applicants educational qualification and training were taken into consideration while fixing the pay scale of Rs. 1350-2200,to him.
It has been further pleaded by the respondents that keeping in view of the above observations regarding different pay scale of qualified medical compounder (Pharmacist) and unqualified compounder difference in training and difference in qualifications, made by the Chennai Bench of Honble Tribunal in order and judgment dated 19.12.2000 in O.A. No. 790/2000. As such, the applicant cannot claim the parity from order and judgment passed by the Chennai Bench of this Honble Tribunal.
18. In response to the pleading of the applicant regarding discrimination against similarly situated person like Mr. M. Arjunan, the respondents stated in Para 9 of the counter affidavit that the case of the applicant is entirely different from the case of Mr. M. Arjunan. It was further stated that the applicant was appointed on the post of Medical Compounder and not on the post of Pharmacist and he was accordingly given the scale of Rs. 1200-2040 w.e.f. 1.1.1986. The scale which the applicant is claiming i.e. Rs. 1350-2200 is the scale for the post of Pharmacist and not of the post of Medical Compounder.
19. It has been also pleaded that CAT, Chennai Bench in the case of M. Arjunan has made it clear that the applicants educational qualification and training were taken into consideration while fixing the pay sale of Rs. 1350-2200 to him and after perusal of the judgment it is crystal clear that the case of M. Arjunan is entirely different from the case of the applicant as such the applicant is not entitled for any parity to the order passed by the Honble Chennai Bench and that the qualification prescribed in the Recruitment Rules for the Post of Medical Compounder do not provide for Registration of Pharmacist.
20. Rejoinder affidavit was filed on 15.8.2004. The applicant reiterated the contents of the O.A. including claiming of parity with (M. Arjunan). The applicant stated in response to para 2 and 3 of CR that the present original application has been filed by him on a new cause of action that arose due to the knowledge of the judgment and order passed by the Honble Central Administrative Tribunal Chennai Bench in O.A. No. 790/2000 (M.Arjunan Vs. U.O.I. & Others ).
In para 3 of the rejoinder affidavit , the applicant states that Government of India, Ministry of Agriculture wrote a letter dated 15/17.6.1999 in connection with the O.A. No. 494/98 while dealing with the representation of the applicant (Annexure RA-I) . The Department of Animal Husbandry & Dairying, Ministry of Agriculture desired copies of the Recruitment Rules/Charter of duties and responsibilities of the post of Medical Compounder in CCBF, Andeshnagar. The said department also desired to know as to why the designation of the post of Medical Compounder was not changed to Pharmacist as per the Ministry of Health letter dated 06.04.1987. Ministry of Finance/Department of Expenditure did not agree to grant higher replacement scales as the higher pay scale was admissible to the post of Pharmacist and not to the post of Medical Compounder held by the applicant in view of recommendation of the Forth Pay Commission.
In para-4 of the Rejoinder Affidavit, the applicant stated that he is also having Diploma in Pharmacist since the year 1979 (Annexure-RA-2). The applicant has also enclosed office order dated 16.5.1983 (Annexure-RA-3) enclosing copy of his initial appointment to the post of Medical Compounder in the pay scale of Rs. 330-380 per month on purely temporary basis w.e.f. 16.5.1983 F.N. with initial pay of Rs. 330/- on usual allowances as admissible to Central Government employees from time to time.
21. Supplementary Counter Affidavit dated 20.9.2009 was filed by the respondents. But no specific para wise reply to the rejoinder has been filed by the respondents. The respondents however, pleaded that the case of the applicant is not only highly time barred but also not covered by the judgment and order passed by the Honble CAT Chennai Bench in O.A. 790/2000 filed by Mr. Arjunan. It was the order of the Tribunal in O.A. No. 790/2000 which was upheld by the Honble High Court as well as Honble Supreme Court of India. In the judgment CAT, Chennai Bench observed that the applicant (Mr. Arjunan) is qualified Medical Compounder (Pharmacist). Admittedly, as early as on 5.3.1977, the question of scale of pay came up for consideration and Government of India granted the pay scale of qualified compounder as Rs. 330-560/- and that of a unqualified compounder is Rs. 330-480/-. While granting the above scale, the Government of India took note of the recommendations of the Third Pay Commission, subsequently the very same question came up for consideration at the time of recommendation of the Forth Pay Commission. The applicant (M. Arjunan) was granted the pay scale of Rs. 1350-2200/- and the same was granted in consultation with the Director General of Health Services. In para 5 , they have cited the relevant extract of the order passed by the CAT, Chennai Bench which is reproduced below:-
When a pay scale has been granted after due deliberation and after consultation with the Government of India, the respondents cannot now turn around and contend that they have fixed the pay wrongly from 1990 onwards. The respondents themselves have produced the documents to show how the pay scale of the applicant, Mr. Arjunan was fixed. On 24.2.88, the second respondent wrote letter to then Deputy Secretary, Ministry of Agriculture, wherein, it is stated that the applicants Mr. M. Arjunan case has to be decided on its own merit without any generalization. The Government of India also took note of the fact that the applicant is holding a Diploma in Pharmacy and therefore, he was called Pharmacist. Another letter was written by the second respondent on 9.8.1998 stating that the recommendations of the 4th Pay commission were accepted by the Government of India in TOTO and therefore, the applicant, Mr. M. Arjunan has to be given the scale of pay of Rs. 1350-2200/- which scale was granted to the Pharmacist. By letter dated 21.6.1989, it was reiterated that the applicants case should not be clubbed with others as others are not having the same training. The pay In para 6, the respondents have pleaded that recruitment rules for the post of Medical Compounder do not provide for registration of Pharmacist.
22. The applicant filed supplementary affidavit dated 17.1.2010 where he is reiterated his claim for grant of pay scale of Rs. 1350-2200, instead of Rs. 1200-2040 w.e.f 01.01.1986 and Rs. 4500-7000 instead of Rs. 4000-6000 w.e.f 01.01.1996 on the ground of parity with the case Sri M. Arjunan. In para 3 of the supplementary affidavit, he has annexed electro-stat copy of the letter dated 15.10.1998 as Annexure S-1. Applicant claims that he was working under the respondent No. 3 who had recommended his case to respondent No. 2 as above. There is no reply from the respondents side to this supplementary affidavit filed by the applicant dated 17.1.2010.
23. We have heard the learned counsel from the side of the applicant and the respondents and perused the material on record to assess the rival contentions.
24. The learned counsel for the applicant has submitted list of cases on behalf of the applicant:
(i) AIR 12996 SC 669 M.R. Gupta Vs. Union of India and Others.
(ii) AIR 1997 SC 3588 K.C. Sharma Vs. Union of India and Others.
(ii) AIR 1989 SC 985 P.L. Shah Vs. Union of India and Others.
The first case M. R. Gupta Vs. Union of India and Others relates to proper fixation of pay treating it as a recurring cause of action and can not be barred by limitation of time. In this O.A., the pay of the applicant was fixed properly on his initial appointment and there is no dispute about it. His representation dated 27.5.98 for up-gradation of the pay scale of the post of Medical Compounder at Central Cattle Breeding Farm, Andesh Nasgar from 1200-2040to 1350-2200 from 01.01.1986 and from Rs. 4000-6000 to 4500-7000 from 01.01.1996 was considered by the department of Animal Husbandry and Dairying in consultation with Ministry of Finance, Department of Expenditure and accordingly, a speaking order dated 22/24.9.99was passed by the authorities. The contempt petition in this regard was also accordingly dismissed by this Tribunal. Matter in case of applicant was finally settled as far back as 22/24.09.1999. Hence there is no recurring cause.
K.C. Sharma Vs. Union of India and Others, in this case, the appellants were employed as guards in the Northern Railway and they retired as guards during the period between 1980 and 1988. Since Rule 2544 of Indian Railway Establishment Code was amended, they claimed the benefit for purpose of calculation of average emolument for re-fixation of their pensions. In the light of such amendment, the Apex Court ruled that the appellants would be entitled to the same relief in the matter of pension as has been granted by the Full Bench of the Tribunal in its judgment dated 16.12.1999 in O.A. Nos. 395-403 of 1993 and such benefit cannot be barred by limitation. Here again the matter regarding pay scales of the applicant as a result of implementation recommendation of Forth Pay Commission and Fifth Pay Commission has already been decided by the concerned authorities in the letter dated 22/24.9.1999. Here in this case no statutory rule which has been amended as in the case cited above.
P.L. Shah Vs. Union of India and Others, in this case, the Apex Court ruled that if the Government Servant is not responsible for delay in disciplinary proceedings against him, it is for the Government to reconsider whether order of suspension should be continued or whether the subsistence should be varied to his advantage or not. The Apex Court ruled that , it is open for the Tribunal to fix a date since when the subsistence allowance at the revised rate should be paid. The Tribunal had earlier rejected the application solely on the ground that the order reducing the subsistence allowance has been passed on 6.5.1982 saying that the Tribunal cannot entertain such an application within the period of three years from the date on which the Tribunal commenced to exercise its powers having due regard to the date of application. This case is also not relevant to the facts and the legal position as mentioned above in the present O.A.
25. From the pleadings of the applicant , it is very clear that the order and judgment dated 16.12. 1998 in O.A. 494/98 was complied with and the contempt petition No. 33/99 in this regard was also dismissed by this Tribunal which is filed as (Annexure-1) to the O.A.
26. In the present O.A., the applicant has approached this Tribunal to grant similar pay scales as given to One Shri M. Arjunan claiming that the case of M. Arjunan is similar. The speaking order dated 22.9.1999 (Annexure SA-1) where the demand of the applicant regarding up-gradation of pay scale on the post of Medical Compounder from Rs. 1200-2040 to Rs. 1350-2200 from 1.1.867 and form 4000-6000/- to 4500-7000 form 1.1.98was not agreed to in the light of reasons mentioned herein and his representation was therefore rejected. The reasons given in the speaking order dated 22.24.9.99 (Annexure SA-1) are noted below:-
(a) As per the recommendations of the Fourth Pay Commission, the scale of pay of Rs. 1350-2200 is admissible to the post of Pharmacist and not to the post of Medical Compounder held by the applicant. The Fifth Pay commission have recommended the regular replacement scale of pay of Rs. 4500-7000 for the post of Pharmacist and not for the post of Medical Compounder
(b) When the grant of pay scale of Rs. 1350-2200 (after Fourth Central Pay Commission) and scale of Rs. 4500-7000 (after Vth Central Pay Commission) to the Compounder in Central Cattle Breeding Farm, Alamadhi came to the notice of the Ministry of Finance (Department of Expenditure) they had taken the view that the grant of higher scales was irregular and needs to be corrected. Necessary corrective action for granting the correct scale to the Compounder at CCBF, Alamadhi was accordingly taken in this regard, so as to introduce parity in the scales of Compounder at CCBF, Alamadhi and CCBF, Andesh Nagar.
(c) The qualifications prescribed in the Recruitment Rules for the post of Medical Compounder in the Central Cattle Breeding Farm, Andesh Nagar do not provide for Registration as a Pharmacist.
The representation of the applicant dated 27.5.1998 was considered and decided by administrative Ministry of Agriculture, Department of animal Husbandry in consultation with Ministry of Finance, Department of Expenditure. The applicant while challenging impugned order dated 22/24.09.1999 has not cared to implead Ministry of Finance which is nodal Ministry for implementation of orders of Govt. relating to recommendations of Pay Commissions. The applicant fairly concedes that recruitment rules as applicable to the post he is holding were called for and considered by the administrative Ministry as above before impugned orders dated 22/24.09.1999 were passed. The impugned order dated 22/24.09.1999 hasgiven thought to this and has stated as under:-
(c) The qualifications prescribed in the Recruitment Rules for the post of Medical Compounder in the Central Cattle Breeding Farm, Andesh Nagar do not provide for Registration as a Pharmacist.
27. The Apex Court ruled in the case of State of M.P. Vs. Ramesh Chandra Bajpai (2009)13 SCC 635 that similarity in designation or nature or quantum of work is not determinative of equality in the matter of pay scales. Discrimination on account of equal pay for equal work is a positive concept of equality. It cannot be invoked for perpetuating illegality. The relevant paragraphs are reproduced below: -
5. Soon thereafter, the respondents filed an application (M.a. No. 277/98) for review of the order dated 16.9.1998 vide which the Tribunal had dismissed the O.A. during the pendency of that application, the Tribunal was abolished and all the pending matters were transferred to the High Court. The respondents case was then registered as Writ Petition No. 4005 of 2003. A learned Single Judge of the High Court allowed the Writ Petition relying upon the judgment of this Court in P. S. Ramamohana Rao Vs. A. P. Agriculture University and the order passed in Writ Petition No. 5438 of 2000 directing that the pay of the Writ Petitioner be fixed in the scale prescribed for the post of teacher.
6. The Division Bench dismissed the Writ Appeal preferred by the petitioners primarily on the ground that a large number of physical training instructors have already been granted UGC scale and an order declining relief to the respondents would result in discrimination. The Division Bench also referred to the judgment in P. S. Ramamohan Rao and held that the respondents can not be deprived of the benefit of pay scale which has already been extended to other similar situated physical training instructors employed in the ayurvedic colleges.
14. In para 6 of the impugned order, the Division Bench of the High Court observed that the rules governing and regulating the service of the respondents make a distinction between Physical Training Instructors and Teacher in the matter of status and pay scale, but proceeded to sustain the direction given by the learned Single Judge mainly on the premise that the orders passed in the cases of other Physical Training Instructors have not been assailed. The Division Bench also relied upon the ratio of judgment of this Court in Ramamohana Rao case and observed that the nature and duties of the Physical Training Instructors are on a par with those of teachers.
15. In our view, the approach adopted by the Learned Single Judge and the Division Bench is clearly erroneous. It is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarly in the designation for nature or quantum of work is not determinative of equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, the nature of work , the value thereof, responsibilities reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holders of two posts.
16. In Govt. of W.B. v. Tarun K. Roy a three-judge Bench of this Court held as under: SCC p. 355, Para14) 14. Article 14 read with Article 39 (d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently. The Court further opined that in a case where the employees do not hold a essential educational qualifications, they cannot claim parity in the scale of pay on the ground of equality stating: (SCC p. 359,para 30) 30. The respondents are merely graduates in Science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this Court to the respondents on the aforementioned ground, the same will be in contravention of the statutory rules. It is trite that this Court even in exercise of its jurisdiction under Article 142 of the Constitution of India would not ordinarily grant such a relief which would be in violation of a statutory provision.
17. It is also well settled that Article 14 of the Constitution carries with it a positive concept of equality. The Article cannot be invoked for perpetuating illegality. To put it differently, and enable or wrong order passed in one case cannot be made the basis for compelling a public authority to pass similar order in other cases. Even if the State implements an erroneous orders passed by the Court, it cannot be precluded from challenging similar order passed in another case, simply because appeal was not preferred in the earlier case.
18. In Govt. of W.B the Court upon noticing a large number of decisions, observed:(SCC pp. 357-58, Para 25 and 28) 25. In a case of this nature, the courts are required to determine the issue having regard to larger public interest. It is one thing to say that in a given case the High Court or this Court may not exercise and equitable rejection under Article 226 or Article 136 of the Constitution of India, but it is another thing to say that the Court shall grant a relief to a party only on the ground that contention which is otherwise valid would not be raised on the ground that the same was not done in earlier proceedings.
28. In the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the appellants on their own merits, particularly, when the question as regards difference in the grant of the scale of pay on the ground of different education qualification stands concluded by a judgment of this Court in Debdas Kumar. If the judgment of Debdas Kumar is to be followed, a finding of fact was required to be arrived at that they are similarly situated to Debdas Kumar which in turn would mean that they are also holders of Diploma in Engineering. They admittedly be not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits (See State of Maharashtra v. Digambar).
19. In State of Jharkhan v. Manshu Kumbhkar this Court held: (SCC p. 251, para 11) 11. Reliance by the High Court on the order passed in Sanjay Kumar case was thoroughly misconceived. It is to be noted that LPA was dismissed on the ground of delay. Even otherwise, merely because mistake had been committed in one case, there is no rational for perpetuating that mistake, even when the same is illegally impermissible.
20. In M.D. University v. Jahan Singh this Court observed: (SCC p. 84, para 28) 28. Even assuming the respondent and the said Shri Taneja were similarly situated, we may observe that Article 14 of the Constitution cannot be invoked, for perpetuating illegality. (See Kuldeep Singh v. Govt. of NCT of Delhi.)
21. In view of the aforementioned pronouncements, it must be held that the respondent cannot derive any benefit from the fact that in compliance with the orders passed by the Tribunal and the High Court, the State Government extended the benefit of UGC scale of pay to some of the Physical Training Instructors of ayurvedic and other colleges. We may assume that what the learned counsel has stated with reference to order dated 24.4.2004 is correct, but as noticed hereinabove the illegality cannot be allowed to be perpetrated by invoking the doctrine of equal pay for equal work.
28. In State of West Bengal and Ors. Vs. West Bengal Minimum Wages Inspectors Association and Others (2010) 5 SCC 225, the Apex Court has given very clear ruling on equal pay for equal work. Determination of pay parity is an executive function to be carried out by expert bodies and burden to prove disparity in pay is on employee claiming parity. Court would interfere only where Government decision is patently irrational, unjust or prejudicial. Relevant paras are extracted below:-
18. The principles relating to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts.
19. The principle equal pay for equal work is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs , duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
20. The Burden to prove disparity is on the employees claiming parity-vide State of U.P. v. Ministerial Karamchari Sangh; Associate Banks OfficersAssn. vs. SBI; State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.; State of Haryana v. Tilak Raj; SC. Chandra v. State of Jharkhand and U.P. SEB v. Aziz Ahmad.
X X X X
23. It is now well settled that parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying the same scale of pay. In fact, one of the functions of the Pay Commission is to identify the posts which deserve a higher scale of pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts.
24. The Pay Commission has two functions; to revise the existing pay scale, by recommending revised pay ;scales corresponding to the pre-revised pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending upon the nature of duties and functions attached to those posts. Therefore, the mere fact that at an earlier point of time , two posts were carrying the same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale.
25. As noticed above, one post which is considered as having a lesser pay scale may be assigned a higher pay scale and another post which is considered to have a proper pay scale may merely be assigned the corresponding revised pay scale but not any higher pay scale. Therefore, the benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge duties and functions identical with, or similar to, each other and that the continuation of disparity is irrational and unjust.
X X X X
27. The Third Pay Commission did not accept the representation of the Inspectors, AMW seeking a higher pay scale. It held that they are entitled only to Pay Scale 9. When the respondents mad a grievance in that benefit, it is no doubt true that the Pay Review Committee considered the representation and made a recommendation that the posts which were in the pay scale of Rs. 300-600 including those which were in the same pay scale but started with a higher initial start of Rs. 330, should be granted the scale of pay of Rs. 425-1050, as per the ROPA Rules, 1981. The said Committee did not take note of the fact that different posts having the same pay scale, may have different duties and functions and some may deserve a higher pay scale than the others. The Government rejected the recommendation of the said Committee, for valid and justifiable reasons.
28. The State Government categorically stated that the Pay Review Committees general recommendation that all posts carrying a particular scale of pay should all be given automatically the same higher pay scale could not be accepted, as the Committee did not make the recommendation after considering the duties and responsibilities attached to different categories of posts. Therefore, we are of the view that the State Government was justified in acting on the recommendation of the Third Pay Commission and rejecting the recommendation by the Pay Review Committee. It was further held as under:-
The principal equal pay for equal work is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. comparison merely based on designation of posts is misconceived. The principles relation to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts. The burden to prove disparity is on the employees claiming parity. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.
Parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying the same scale of pay. The pay Commission has two functions; to revise the existing pay scale, by recommending revised pay scales corresponding to the pre-revised pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending upon the nature of duties and functions attached to those posts. Thus one of the functions of the pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts. One post which is considered as having a lesser pay scale may be assigned a higher pay scale and another post which is considered to have a proper pay scale may merely be assigned the corresponding revised pay scale but not any higher pay scale. Therefore, the mere fact that at an earlier point of time, two posts were carrying the same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale. The benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge duties and functions identical with, or similar to, each other and that the continuation of disparity is irrational and unjust.
In this case, the claim was based on the contention that as the subject post holders and the holders of reference category posts who were enjoying equal pay at an earlier point of time, should be continued to be given equal pay even after pay revision. In other words, the parity claimed was not on the basis of equal pay for equal work, but on the basis of previous equal pay. The respondents have neither pleaded nor proved that the holders of the post of inspectors (Cooperative Societies), Extension Officers (Panchayats) and KGO-JLRO (Revenue Officers) were discharging duties and functions similar to the duties and functions of Inspector, AMW. Hence, the prayers of the respondents could not have been granted.
29. Considering pleadings and submissions of the respondents in case of the applicant and Arjunan and legal position and discussions in Para 26, Para, 27 and Para 28 above, this O.A. is not only time barred but devoid of any merit and deserves to be dismissed. This Tribunal has already dismissed the applicants Contempt Petition No. 33/1999 after getting full compliance from the concerned authorities. We dont find any illegality or infirmity committed by concerned authorities in the case of applicant. The O.A., therefore, is liable to be dismissed.
30. The O.A. is accordingly dismissed. No order as to costs.
(S. P. Singh) (Justice Alok Kumar Singh) Member (A) Member (J) vidya