Central Administrative Tribunal - Allahabad
Bhagwan Swaroop vs Union Of India on 1 August, 2018
RESERVED
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Dated: This the 01st day of August 2018.
PRESENT:
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER (A)
HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
Original Application No. 1876 of 2010
1. 3985 Tailor Bhagwan Swaroop son of Sri Arami
Lal resident of 46/240, Naripura Dhanoli, Agra.
2. 2585 Tailor Chhaman Lal, son of Sri Paloram,
Resident of 21, Nolakkha, P- Pratappura, Agra.
3. 2006 Tailor Charan Singh son of Sri Thakur Das,
resident of Nagla Makrol, P- Pratapurra, Agra.
4. 2050 Tailor Ishtiaq Ali, S/o Sri Mohammad Ali,
R/o 18A-68, Near Surma Hotel, Pratappura, Agra.
5.2024 Tailor Surajbhan, S/o Sri Chiranji Lal,
R/o 9/24, Namak Mandi, Shahganj, Agra.
6. 2531 Tailor Budharam, S/o Sri Triloki Ram,R/o
Nagla Makrol, P-Kakua, Agra.
7. 2573 Taillor Bhagwan Dass, S/o Sri Munni Lal,
R/o 29/278, Gali Mansa Devi, Raja Mandi, Agra.
8. 2920 Tailor Mahendra Singh, S/o Sri Gandhi
Singh, R/o 46/112, Kamla Nagar, Agra.
9. 2921 Tailor Tilak Singh, S/o Gopal Singh, R/o
Nagla Laljit, Sadar Bazar, Agra.
10.Smt.Vimla Devi, Wife of 2523 Tailor Pratap
Singh (Deceased)R/o Ayodhya Puram Colony, Devri
Road, Agra.
11.2529 Tailor Shital Prasad, S/o Sri Shyam
Lal,R/o 37/27, Nagla Padi, P-DAyal Bagh, Agra.
2
12.748 Tailor Tara Singh, S/o Sri Thakur Dass,
R/o Nagla Makrol, P-Kakua, Agra.
13.Ashok Kumar, son of 2592 Tailor Pratap Singh
(deceased) resident of 63/86, Chawali P-
Pratappura, Agra.
14.5001 Tailor Maqsud Ali, son of Sri Shaukat
Ali, resident of 58/102, Sarain Khwaja, Agra.
15.2547 Tailor Lakhan Singh, son of Sri Mewa Lal
resident of 36/34D-P-14, Dayanand Colony, Deori
Road, Agra.
16.704 Tailor Indra Kumari, wife of Sri Bhagwat
Swaroop, resident of 64, Amit Nagar, Deori
Road, Agra.
17.706 Tailor Rampal Singh, son of Sri Gawadu Lal,
resident of 34/36, Laxmi Vihar Colony, Ukhrra
Road, Agra.
18.5002 Tailor Hardev Singh son of Sri Kishan Lal
Meena, resident of 30/6, Rana Pratap Colony,
Sadar Bazar, P- Pratappura, Agra.
. . . Applicants
By Adv: Shri Rakesh Verma/Shri Yar Mohammad
V E R S U S
1. Union of India through the Secretary, Ministry
of Defence, New Delhi.
2. Director General of Ordnance Services, Master
General of Ordnance Branch, Army Headquarters,
DHQ, P.O New Delhi
3. Commandant, Central Ordnance Depot, Agra.
. . .Respondents
By Adv: Shri N.P Shukla
O R D E R
BY HON'BLE MR. RAKESH SAGAR JAIN, MEMBER (J)
1. The present Original application has been filed by applicants under section 19 of 3 Administrative Tribunal Act, 1985 seeking the following reliefs:
i. suitable order or direction, quashing the order of the competent authority as conveyed in the order dated 11.11.2009 of respondent No. 3 (served by covering letter dated 17.11.2009)- Annexure A-7 to compilation NO.1 - in so far as it does not provide skill grade w.e.f. 16.10.1981 to all the Tailors (retired/dead) together with those who are still working, and direct the competent authority to suitably amend SRO 38 (Annexure A-8) to grant skilled grade to Tailor applicants w.e.f. 16.10.1981 in the same manner as was granted to EME Tailors.
ii. suitable order or direction, directing the competent authority to pay arrears w.e.f. 16.10.1981 together with consequential increase in the pay scale from time to time as has been given to the EME Tailors.
iii. such other appropriate orders or direction as the Hon'ble Tribunal deems fit and proper in the circumstances of the case".
2. It is to be noted that the original application has not been drafted properly but in pith and substance, applicants' case is that they are/ were working as Tailors in Central Ordnance Depot (C.O.D.), Agra but being in the semi- skilled grade were getting pay scale which was lower than the Tailors of E.M.E. who were given 4 grade of skilled workmen. Therefore, applicants, in effect, seek parity with E.M.E. Tailors for being categorised as skilled workmen and also higher pay scale as was given to E.M.E tailors w.e.f. 16.10.1981.
3. The brief facts of the case are that applicant Nos. 1, 12, 14, 15, 16, 17 and 18 are still working as Tailors in C.O.D. Agra while applicant Nos. 2, 3, 4, 5, 6, 7, 8,9 and 11 had retired from service as Tailor from C.O.D Agra and applicant No. 10 is the wife of 2523 Tailor Pratap Singh who died on 11.8.2005 and applicant No. 13 is the son of 2592 Tailor Pratap Singh who died on 24.2.2006 after retirement on 30.6.2004 from C.O.D. Agra. It is the case of applicants that Expert Classification Committee Report had recommended 9 pay scales for industrial workers in the Defence establishment against the recommendation of the 3rd Pay Commission to compress the scales into five pay scales, for which Union gave strike notice and demanding introduction of five scales.
4. During this period, report of committee on Common Category Jobs was not accepted by the Government and the Government took the decision to compress the 9 pay scales into 5 scales. Thereafter a paper was prepared for Cabinet giving proposal for fitment which was approved by the Cabinet in October 1981 and thereafter to carry out a review by the Ministry of Defence to remove cases of anomalies, the 5 Anomalies Committee submitted its report on 26.5.1984, which in its report dated 26.5.1984 inter alia laid down that :-
"All the jobs studied by the Anomalies committee, which are at present in semi- skilled grade of Rs.210-290 may be upgraded to the skilled grade of Rs.260-
400. This may be given effect from 16th October, 1981.
The semi-skilled jobs (Rs.210-290) in other Defence Establishments whose nomenclature is the same and, job content and skill requirement are comparable with those jobs already studied, should also be elevated to skilled category (260-400) without any further study".
5. The Government of India vide its letter dated 11.5.1983 (Annexure A-1) gave 5 scales to Industrial workers in E.M.E. wherein the skilled labours were given the pay scale of Rs.260-400 and as per the Annexure-2 to the aforementioned letter, the tailors were given the category of 'skilled' increasing their pay scales from Rs.210-290 to Rs.260-400. This increment as per the notification was to take effect from 16.10.1981.
6. It is the case of applicants that all the applicants as detailed in para 1 of the present application were in the grade of Rs.210-290 on 16.10.1981 as tailor in Central Ordnance Depot (C.O.D.) and there is no difference in the work 6 contained in skilled requirements of the tailors of C.O.D. and their counter-parts in E.M.E. and their work is of similar nature.
7. The applicants are claiming that they are also identically placed like the tailors in E.M.E. and seek the status of skilled category and the pay scale given to the tailors of E.M.E. regarding which the applicants made a representation (Annexure A-4) to the Director General of Ordnance Services along with copy of judgment of Central Administrative Tribunal, Guwahati Bench in O.A. No. 158 of 1994 decided on 19.10.1995. This representation was made in pursuance of direction of Central Administrative Tribunal, Allahabad Bench vide order dated 27.3.2001 seeking pay parity with the tailors in other departments of the Defence ministry. The representation filed by the applicants was rejected necessitating the applicants to file a fresh O.A. No.189 of 2004 which was disposed of vide order dated 29.7.2009 by Central Administrative Tribunal, Allahabad Bench, directing the competent authority to decide the representation of the applicants by a reasoned and speaking order.
8. The representation was disposed of by the competent authority vide speaking order dated 11.11.2009 (Annexure A-7) wherein it has been averred that :
"6. And whereas, Ministry of Defence (Fin) has accorded their approval in principle to the reclassification of the Post of 7 Tailor from semi skilled to skilled Grade subject to amendment in the existing Recruitment Rules. Accordingly, a case for amendment of the existing recruitment rules of Tailors has been taken up with the Ministry of Defence which is under their consideration. Efforts are being made to issue revised Recruitment Rules for the post of Tailors at the earliest.
7. Now therefore, Sri Bhagwan Swaroop and others, are hereby, informed that his case along with others for up-gradation of the post of Tailor from Semi Skilled to Skilled is in the process and is likely to be finalized shortly by the Government, which will be intimated by issue of a separate letter".
(Note:- As mentioned above, the applicants have challenged the above communication which seems to have been done inadvertently since the applicants are laymen and not expected to have in-depth knowledge and nuance of drafting the pleadings.)
9. Thereafter, S.R.O-38 dated 18.12.2009 (Annexure A-8) was issued by Ministry of Defence, Government of India which was published in the Gazette of India dated 26.12.2009 in which the tailors were put in the skilled category having the pay scale of PB-1 Rs. 5200-20200 Grade Rs.1900/-. Therefore, as per, para No. 17 of the counter affidavit filed by respondents wherein it has been averred that 8 the applicants, who are the tailors, have been granted the skilled grade after convening the D.P.C w.e.f. 30.7.2010 as per Government of India Notification dated 18.12.2009 and IHQ of MoD (Army) letter No. A/23731/RR Tailors/OS-8C
(ii) dated 6.1.2010.
10. It may be mentioned that as per Annexure A-2 dated 11.5.1983 issued by Ministry of Defence, Government of India, skilled grade was given the pay scale of Rs.260-400 to the tailors working in E.M.E and to take effect from 16.10.1981.
11. The applicants all along have been agitating that they are tailors working in the C.O.D. of the Ordnance Factory have been given the semi skilled grades whereas tailors working in E.M.E. department have been given the skilled grade which carries the higher pay scale and since the tailors working in both the categories carry out similar work, the tailors of C.O.D. have been discriminated against in the category and high pay scale which has been given to the tailors of E.M.E. from 1981 for which they seek parity as given to their counter-parts. The fact that the applicants i.e. the tailors of C.O.D. have been given the skilled grade is apparent from the issuance of S.R.O. 38 of 18.12.2009 which is acknowledged by the respondents in the paragraph No. 17 of their counter affidavit.
912. Applicants seek parity with the tailors of E.M.E. in matter of categorisation and pay scales together with arrears of pay and, therefore, the present Original Application.
13. In the counter affidavit filed by the respondents, it has been submitted that 18 tailors from C.O.D. Agra vide their application dated 4.3.1999 had intimated that the category of tailors trade has been declared as skilled grade w.e.f. 16.10.1981 in the pay scale of Rs.260-400/- which was revised to Rs.950-1500/- w.e.f. 1.1.1986 and Rs.3050-4590 w.e.f 1.1.1996 by Guwahati Bench of Central Administrative Tribunal. The Government of India vide communication dated 15.10.1996 conveyed the sanction of the President granting skilled grade only 17 tailors.
14. It is further stated in the counter affidavit that the skilled grade has been given to only those tailors who have got the orders from the Court whereas the other tailors will remain in the semi skilled category till they are classified as skilled.
15. Respondent No. 3 forwarded the applications of all the tailors to respondent No.2 for issue of clarification on the subject matter. Ministry of Defence vide its letter dated 18.6.1999 clarified that the post of tailors are still in the semi skilled category and it was also informed that matter of tailors for 10 grant of skilled grade was under active consideration of the Government. Thereafter respondent No.3 sent a reminder to respondent No.2 vide letter dated 6.3.2000. When no action was taken by the respondents on the representation of the applicants, present applicants moved an O.A. No. 349 of 2000 before this Tribunal and the Tribunal vide its order dated 27.3.2001 directed the respondents to decide the representation of the applicants. On receiving of representations of applicants, it was sent to respondent No.2, till then it was not decided and it was under
active consideration to the Government. The representations of applicants had been carefully examined by the Ministry of Defence, who after careful consideration, informed that the case of applicants has not been approved for grant of skilled grade to all tailors of Ordnance Depots. Being aggrieved by the above decision, applicants again filed OA No. 189 of 2004. Again Tribunal vide its order dated 29.7.2009 directed the respondents to decide the representations of applicants by a reasoned and speaking order. In turn Ministry of Defence carefully examined the case of applicants and passed a reasoned and speaking order vide order dated 11.11.2009 as mentioned above.
16. In the rejoinder, the applicants reiterated the averments made in the O.A. and further stated that the Anomalies Committee recommended that there is no difference in skill requirement in 11 repair/overhaul workshop qua the production shop and therefore there should be no difference in pay scales of workers of the two units. It has been submitted by the applicants that impugned order do not deal with any of the points raised by the applicants based on the recommendation of Anomalies Committee.
17. In the supplementary affidavit filed by the applicants, it has been submitted that Central Administrative Tribunal, Guwahati Bench vide order dated 19.10.1995 in O.A. No. 158 of 1994 titled Nripendra Mohan Paul v. UOI had decided that claim of Industrial tailors for antedated skilled grade. Against the above order dated
19.10.1995, the respondents filed SLP No. 13856 of 1996 before the Hon'ble Apex Court and the same was dismissed. Review Petition filed against the order of SLP was also dismissed by the Hon'ble Supreme Court.
18.Learned for applicants further submitted that the nature of work, sensitivity of service and job classification for the tailors working in C.O.D and E.M.E are identical. In support of their contention the applicants have raised the following important grounds:
(1) The applicants are entitled to pay parity with that of staff (tailors) of E.M.E when the applicants too are working as tailors since 1981;
(2) The action of the respondents in denying the pay parity is arbitrary, illegal and 12 discriminatory inasmuch as the respondents have also extended the benefit of high pay scale to tailors, who were applicants in the O.A filed in Guwahati and as per judgment of Central Administrative Tribunal, Guwahati without giving the benefit of the same to the applicants who are similarly situated, also gave revised pay scale of Rs.4000-6000 to one Smt. Ganga Devi, Compositor and other persons who are identically placed. It would be pertinent to note that these facts and the implementation of judgment of Central Administrative Tribunal, Guwahati have not been controverted by the respondents.
19. In the instant O.A, the case projected by the applicants is that they are tailors working in the C.O.D. of the defence ministry in the semi-skilled category whereas tailors working in E.M.E. of the defence establishment are placed in the skilled category and drawing a high pay scale of since 1981. The applicants claim that the tailors in both sections of the defence ministry are doing similar work, yet in the category of skill and semi-skill and pay scale, the applicants have been discriminated against and therefore, they are entitled to be categorised as skilled workmen and entitled to same pay scale as the tailors of E.M.E. Undoubtedly, there is no mention in the counter affidavit that the duties of the tailors in both E.M.E, and C.O.D. sections are different or more onerous in one section than the other section or that there is dis-
13similarity to the extent that one section requires more skill than the other section in the execution of the tailor job. The tailors in both sections are in skill category and are doing similar work is recognised by SRO 38 dated 18.12.2009 whereby the tailors of all sections have been clubbed together to give them the category of skilled tailor and similar pay scale. Therefore, discrimination against the applicant-tailors is writ large on the face of record. The respondents cannot escape from the judgment of Central Administrative Tribunal, Guwahati in case titled Shri Nripendra Mohan Paul and others v/s Union of India decided on 19.10.1995 and against which SLP was dismissed in the Hon'ble Apex Court. The relief given by the Central Administrative Tribunal, Guwahati is:
I) "We, direct the respondents to take effective steps for obtaining the sanction of the President and concurrence of the concerned Ministries of the Government of India to declare the applicants in the Tailor grade as "skilled workers" and to grant them thereafter subject to the sanction, the skilled grade with effect from 9.11.1984 as prayed by them on the conditions contained in the Government letter dated 15.10.1984 as modified by the decision of the Government of India contained in the letter dated 19.3.1993. II) We direct the respondents to carry out the aforesaid exercise within a period of three months from the date of 14 communication of this order and thereafter subject to the decision taken, to pay the arrears of pay and allowances to the respective applicants as may be found payable as a result of granting antedated skilled grade scale in accordance with the aforesaid guidelines, within a period of months thereafter."
20. In the present case, the applicants and the tailors in E.M.E are having the same duties and nature of work and being similarly placed cannot be given different workmen category, as it would violate Article 14 and 16 of the Constitution being irrational and arbitrary. The settled law is that no rules can be made in violation of the provisions contained in the Constitution of India. Therefore, we are of the view that the applicants being similarly placed with the tailors of E.M.E. are entitled to be included in the category of the skilled labour for the pre 2009 position. As a corollary, the question arises and to be gone into, is, as to whether the applicants are entitled to the higher pay scale which was being given to the tailors of E.M.E since 1981.
21. The issue of equal pay for equal work and employees holding same posts under the same employer requiring same pay scales to be applied is no longer res integra. We eschew reference to various authorities where parity is claimed by employees in different 15 departments under the Union, for the reason different issues arise for consideration therein, but note those decisions where employees in the same department were sought to be placed in different scales of pay, notwithstanding the employees holding identical posts and doing same jobs. In Telecommunication Research Centre Scientific Officers (Class-I) Association vs. UOI, 1987 (1) SCC 582, the Hon'ble Apex Court on the issue of parity of pay held that for employees holding same post and doing same work and there being no ground to classify the same in two categories, the placement in different scales of pay was arbitrary. Therefore, it was directed that both groups be paid the same wages. In M.P.Singh vs. UOI, 1987(1) SCC 592 it was held by Hon'ble Apex Court that where employees enter the cadre from two different sources, if they do the same work and are similarly placed, there can be no discrimination in payment of wages.
22. Learned counsel for applicants has referred in detail to law regarding equal work equal pay settled by the Hon'ble Apex Court in:
1) U.O.I. and Others Vs. Dinesh K.K. JT 2008 (1) SC 231 wherein it has been held as under:-
"12. The principle of equal pay for equal work has been considered, explained and applied in a catena of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as 16 part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir Singh Vs. Union of India & Ors., a bench of three learned Judges of this Court had observed that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal, capable of being attained through constitutional remedies and held that this principle had to be read under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench of this Court in D.S. Nakara & Ors. Vs. Union of India. Thus, having regard to the constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in service jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right.
13. Initially, particularly in the early eighties, the said principle was being applied as an absolute rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note of caution was sounded that the principle of equal pay for equal work had no mathematical application in every case of similar work. It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a 17 carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat Personal Staff Association. Nevertheless, it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene.
14. In State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors. , a three-Judge Bench of this Court, dealing with the same principle, opined that principle of 18 equal pay is dependent upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities do make a difference. It was held that the judgment of 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.
15. In State of Haryana & Anr. Vs. Tilak Raj & Ors., it has been observed that the principle of equal pay for equal work is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organizations or even in the same organisation. It has been reiterated that this 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. It has been emphasized that the problem about equal pay cannot be translated into a mathematical formula.
XXX XXX XXX
19
17. Tested on the touchstone of the
aforenoted broad guidelines and not cast- iron imperatives, we are of the opinion that in the present case, on the pleadings and the material placed on record by the parties in support of their respective stands, the High Court was justified in issuing the impugned directions.
18. Vide order dated 10th October, 1997 passed by the Ministry of Home Affairs in pursuance of para 7 of the Ministry of Finance, Department of Expenditure Resolution dated 30th September, 1997, it was notified that the President was pleased to rationalize the rank structure and pay scales of non gazetted cadre of central police organizations and as a result of this exercise certain ranks were to be merged and the rank structure was communicated in the order along with the revised pay scales and replacement pay scales. Copy of this order was sent to all the paramilitary forces, including the Assam Rifles.
19. On 22nd January, 1998, an office memorandum was issued by the Government of India, Ministry of Home Affairs, by way of a clarification. In the said letter, it was clarified that order dated 10th October, 1997 was equally applicable to all advertised categories. In the said letter, direction with regard to the re- designation of the three posts including 20 Head Constable (RM) as ASI in central paramilitary forces along with their replacement pay scales were also ordered.
20. It appears that the disparity in rank and pay in various central paramilitary forces could not be resolved and on 24th April, 2001, the Director General Assam Rifles submitted a report to the Government with regard to the progress on pay anomaly cases. Para 4 of the said letter is of some relevance to the issue at hand and it reads as follows: "Rank and pay of Technical Cadre Person RM. Ptmn, Pharma, and Compounder of AR with the same intake QR for remounts are given the rank of HAV wherein they are counterparts in CPOs are given ASI. The MHA had ordered to submit proposal in directing cadre to cadre comparison with BSF where the rank of ASI is available in other tech and also along with fin implication. The proposal alongwith fin implication has been submitted to MHA and the case is lying with MOF for approval.
21. Having failed to receive any positive response from the Government, one of the Radio Mechanics issued a Notice of Demand to the Ministry of Home Affairs and Director General of Assam Rifles, inter alia, praying for giving effect to office order dated 10th October, 1997 and office memorandum dated 22nd January, 1998. Vide order dated 26th December, 2001, the Ministry of Home Affairs informed the 21 Director General of Assam Rifles that his proposal had been examined in consultation with Ministry of Finance and it was found that there was no point for comparison of grades and scales of pay for such posts across various central paramilitary forces. 22. It was stated that the proposed upgradation may disturb relativities of various trades and grades within the Assam Rifles and there was no functional justification for upgrading these posts. It is evident that on rejection of the recommendation made by the Director General of the Force, the respondent herein was left with no option but to approach the High Court for redressal of his grievance.
XXXX XXX XXXX
24. From the afore-extracted paragraphs of the counter affidavit and the resume of correspondence referred to above, it clearly stands admitted by the petitioners herein that: (i) all the paramilitary forces, including Assam Rifles are at par with each other and
(ii) there was apparent disparity in the pay scales of the personnel of Assam Rifles with their counterparts in other central paramilitary forces. In order to rectify this disparity, Director General Assam Rifles, petitioner No.2 herein, vide his letter dated 18th February, 1998 had, in fact, taken up the grievance of the respondent with the Ministry of Home 22 Affairs, inter alia recommending re-
designation of Havildar (RM) Gd.-I and II of Assam Rifles as Warrant Officer and for replacement of pay scale of Rs.4000- 100-6000 to bring them at par with their counterparts in other central police organization.
25. However, the Ministry of Home Affairs vide letter dated 3rd March, 1998 while accepting the said proposal had recommended re-designation of HAV/RM as Warrant Officer but subject to the condition that the pre-revised and revised pay scales of HAV/RM in other paramilitary forces were identical to the pay scales of Head Constable (RM) in CRFP and BSF. Manifestly, in the instant case, the differentiation in the pay scales of the two paramilitary forces is sought to be achieved not on the ground of dissimilarity of academic qualification or the nature of duties and responsibilities but only on the ground that there was _initial anomaly_ in the Fourth Central Pay Commission Report. The counter affidavit does not even attempt to explain how the case of the HAV/RM in Assam Rifles is different from that of Radio Mechanics in other central paramilitary forces.
26. In the present case, therefore, in the light of the admitted factual position, the question of examination of external comparisons, internal 23 relativities and other factors, to be kept in view for job evaluation, considered to be a complex issue to be studied only by expert bodies, does not arise. As a necessary corollary, the issue as to whether there is a complete or wholesale identity between the said paramilitary forces, does not survive for consideration.
27. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the apparent disparity and anomaly in the pay scales of Radio Mechanics,the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in pre- revised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and 24 arbitrary and thus, violative of Article 14 of the Constitution.
28. On a conspectus of the factual scenario noted above, we do not find any infirmity in the impugned directions given by the High Court, warranting interference. There is no merit in this appeal and it is dismissed accordingly with costs".
2) K.T. Verappa Vs. State of Karnataka 2006 (9) SCC 406 "13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC (L&S)
363. There is no dispute nor can there be any to the principle as settled in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 :
2002 SCC (L&S) 822 that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should 25 interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors.
14. In S.B. Vohra case(2004) 2 SCC 150 :
2004 SCC (L&S) 363 this Court dealing with the fixation of pay scales of officers of the High Court of Delhi (Assistant Registrars) has held that the fixation of pay scale is within the exclusive domain of the Chief Justice, subject to approval of President/Governor of the State and the matter should either be examined by an expert body or in its absence by the Chief Justice and the Central/State Government should attend to the suggestions of the Chief Justice with reasonable promptitude so as to satisfy the test of Article 14 of the Constitution of India. Further, it is observed that financial implications vis-
a-vis effect of grant of a particular scale of pay may not always be a
sufficient reason and differences should be mutually discussed and tried to be solved.
15. In the present cases, in compliance with the judgment of the Division Bench of the High Court, the Vice-Chancellor of the Mysore University constituted a committee headed by Shri Hiriyanna. The 26 said Committee, in its report dated 8-6-
1991, has recorded the observations that the details of the pay scales assigned by the Muddappa Committee, the Manjunath Committee, the Acharya Committee, the Gopala Reddy Committee as also the pay scales given effect to from 1-1-1977 and the claims of the appellants, on individual basis, could perhaps have been attended to by the University itself after the Muddappa Committee made its recommendations. The Vice-Chancellor and the Registrar of the Mysore University, while appearing before the Division Bench of the Karnataka High Court in CCs Nos. 84 to 103 of 1992 in compliance with the order dated 16-4-1992 had brought to the notice of the Bench that the direction issued by the learned Single Judge in WAs Nos. 2220-39 of 1989 dated 18-41990 and 29-1-1991 had already been complied with and arrears of salary had been paid to the employees of the University, who filed the said writ petitions.
Thereafter, the respondent University submitted certain proposed amendments to the statute and the same were sent to the State Government for approval. The State Government, for the reasons best known to it, till date has not been able to state any good reason as to why the amendment of the statute as proposed by the University in regard to the fixation of the pay scales of its employees could not 27 have been approved by the competent authority. The Vice-Chancellor in its affidavit dated 25-1-2000 filed in Writ Appeals Nos. 7007-55 of 1999 has categorically stated that the respondent University, in its meeting held on 17-4- 1999, decided to comply with the orders of the Court and also to extend the benefit of the revised pay scale with effect from 1-1-1977 to those employees who are eligible for such benefits and have not gone to the Court. This decision was taken on the representation submitted by the appellants.
16. The defence of the State Government that as the appellants were not the petitioners in the writ petition filed by 23 employees of the respondent University to whom the benefit of revised pay scales was granted by the Court, the appellants are estopped from raising their claim of revised pay scales in the year 1992-94, is wholly unjustified, patently irrational, arbitrary and discriminatory. As noticed in the earlier part of this judgment, revised pay scales were given to those 23 employees in the year 1991 when the contempt proceedings were initiated against the Vice-Chancellor and the Registrar of the University of Mysore. The benefits having been given to 23 employees of the University in compliance with the decision dated 21-6- 1989 recorded by the learned Single Judge 28 in WPs Nos. 21487-506 of 1982, it was expected that without resorting to any of the methods the other employees identically placed, including the appellants, would have been given the same benefits, which would have avoided not only unnecessary litigation but also the movement of files and papers which only waste public time.
17. Shri Sobha Nambisan, Principal Secretary to Government, Education Department (Higher Education), Government of Karnataka, in his latest affidavit dated 6-3-2006 filed in these proceedings has stated that after 1-1-1977, the Government of Karnataka has revised the pay scales of employees of the State Government in 1982, 1987, 1994 and 1999. From 1-1-1977 to 2006, the dearness allowance, house rent allowance and other allowances have also been revised. The revision of pay scales, dearness allowance, house rent allowance and other allowances extended to the State Government employees were also extended to the University employees from time to time. Moreover, a large number of Mysore University employees were promoted in terms of the time-bound promotion schemes of 10 years, 15 years and 20 years in terms of the government orders issued from time to time. The additional financial implications of Rs 60 lakhs will have to be borne by the State 29 Government. He has categorically stated that the revision of pay scales extended to the employees of the State Government time and again will also be extended to all the University employees.
18. In our view, the impugned judgment of the High Court in WAs Nos. 7007-55 of 1999 dated 8-3-2000 is not legally sustainable. It is, accordingly, quashed and set aside.
19. Consequently, the appeals are allowed and the order of the learned Single Judge dated 29-10-1998 in Writ Petitions Nos. 11755 of 1994, CWs Nos. 3400-23 of 1993, 37901-04 of 1992, 35996 of 1992, 3426-43 of 1993 and 27004 of 1992 is restored and maintained. The respondents-the State of Karnataka and the University of Mysore, both are directed to extend the pay scales of 1977 and subsequent revisions to the appellants and pay the difference of monetary benefits to them within four months from the date of this order. In the facts and circumstances of the case, the parties are left to their own costs".
23. The settled principle of law in aforementioned case is that identically placed persons, including the applicant, could have been given the same benefits, which would have avoided not only unnecessary litigation, cost and heart burning is also an effective reply to the contention of respondent-State that these applicants did not approach the court when the 30 judgment was announced by the Central Administrative Tribunal, Guwahati and therefore, they are not entitled to any relief. (Read with advantage K.I.Shephard v/s UOI, 1987 SCC (L&S) 438)
24. Reference may be made to the Order of Central Administrative Tribunal, Delhi in OA No.164/2009 in the case of S.R. Dheer and Others Vs. U.O.I. & Others decided on 19.02.2009 held as under:-
"51. In the above view of the matter regarding the parity of pay scale in 5th CPC in the wake of an admitted fact of the historical parity between the CSS/CSSS with counterparts in CAT, a final decision is awaited for grant of NFSG grade of Rs.8000-13500 notionally and actually to the employees of the Tribunal. However, as this is not the issue before us, except reiterating in law their demand, the issue of historical parity between the PSs/SOs of CAT and on the other hand SOs/PSs of CSS/CSSS is no more res integra and once accepted by the government and recommended by 6th CPC, the aforesaid recommendations contained in paragraphs 3.1.9 and 7.32.15 having been accepted by the Government, the stand now taken by the respondents that what is applicable to the applicants in the present OA is para 3.1.14 of the recommendations of the 6th CPC is absolutely misconceived. It is pertinent to note that this para applies to non-31
secretariat offices and to those for whom there is no historical parity with CSS/CSSS and in favour of whom a criteria of recommendations has not been laid down in the 6th CPC recommendations. On a juxtaposition, 6th CPC while making its recommendations in para 7.32.15 as to cadre structure of higher pay scale in CAT reiterated that Assistants and Stenographers in CAT have demanded pay scales at par with their counterparts in CSS/CSSS and as the Commission has already recommended parity between the similarly placed posts in field offices and Secretariat, no separate recommendation has been made. The only logical and rationale inference to be drawn is that whatever has been recommended in para 3.1.9 is to be applied mutatis mutandis to the employees of the CAT on the condition precedent being fulfilled, which is establishment of historical parity with CSS/CSSS. The recommendations contained in para 3.1.14 of 6th CPC Report where the field organizations and nonsecretariat organizations have been recommended the pay scale are not at all applicable to the employees of the CAT, as a specific recommendation made in paragraph 7.32.15 Commission having recommended parity between the similarly placed posts in field offices and secretariat the instant demand has been fulfilled. It is trite that when there is a specific 32 recommendation made as transpired from para 3.1.9 as to parity with pay scale of CSS/CSSS structure the asterisk (*) clearly shows that even to the non- secretariat offices and organizations being carved out as an exception to the recommendations contained in para 3.1.14 is that those organizations which are not exhaustive but includes departments and organization which have had a historical parity the pay scale would be at par with CSS/CSSS. It is trite that under the principle of interpretation that in case of interpretation of a service rule, if two views are possible then the rule has to be interpreted with the practice followed in the department for long time as held in Shailendra Dania & Ors. vs. S.P. Dubey & Ors., 2007 (2) SCC (L&S) 202, a marginal note with a provision is an integral part of it and being an exception in the instant case as an asterisk (*) to para 3.1.9, the same has applicability to all field offices and non-secretariat organizations, all departments where there has been historical parity with the pay scale of their counterparts in CSS/CSSS. We cannot read para 3.1.14 in isolation of para 3.1.9 and 7.32.15 where both the recommendations having been accepted by the Government, only applying para 3.1.14 to the exclusion of 3.1.9 would amount to approbating and reprobating simultaneously, as a conscious and well 33 taken decision when transformed into an affidavit of the Government before the Ernakulam Bench, an admission to acceptance of parity and acceptance also of established parity as a historical background leaves no doubt in our mind that there has been a historical parity of SOs/PSs in CAT with their counterparts in CSS/CSSS. They cannot now, as a contradictory stand, deny the same as it would not only be unfair but also is a misuse of their discretionary power which is to be exercised by an administrative authority judiciously after balancing all the relevant factors as ruled by the Apex Court in Union of India vs. Kuldip Singh, 2004 (2) SCC 590. A discretion vested in the administrative authority is neither unfettered nor absolute. It is to be exercised in consonance with the rights of a government employee and Constitution of India. A consideration worth in law is one, which thinks over on active application of mind all the relevant consideration and factors as ruled by the Apex Court in Bhikubhai Patel (supra). As a model employer just to deprive the applicants their rights and legitimate dues without any justifiable reasons and on misreading of their CSSS Revised Pay Rules, 2008, irrelevant considerations have been grounded to deprive the applicants the requisite pay scales on established historical parity with those 34 of their counterparts in CSS/CSSS. Learned counsel for the respondents relied upon the decision of High Court in Mohinder Pal Singh (supra) and in M.V.R. Rao (supra) by a Larger Bench of this Tribunal. In this regard it is pertinent to note that this issue of parity of CAT employees with CSS/CSSS has been dealt with by this Tribunal in S.K. Sareen s case (supra) which, on affirmation from the High Court, and also rejection of SLP, on implementation by the respondents not only attained finality but also is an admission to the effect by the respondents that the SOs/PSs of CAT are maintaining historical parity with those of their counterparts in CSS/CSSS. It is worthwhile to note that there is even a finding recorded that the duties and functional requirements of the CAT employees are more onerous than their counterparts in CSS/CSSS, which has not been overturned by any dicta. A judicial dicta when holds the field and the arena in which it operates, it is impermissible in law to the administrative authorities to infiltrate it as ruled by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327. The Apex Court has also ruled in Dhampur Sugar Mill v. State of Uttranchal, 2007 (11) SCALE 374 that when a public authority acts with oblique motive, bad faith or takes into account extraneous or irrelevant 35 consideration, the exercise has to be held as not in accordance with law.
52. In the above view of the matter the contention that the Government has not accepted the claim of the applicants as to the parity with CSS/CSSS is founded on a ground and justification, which has been misconceived by them and wrongly applied. Such a consideration cannot be a consideration worth in law.
53. In the matter of pay scale equation though the prerogative lies with the Government but any action taken especially when such a recommendation covers the claim of the applicants and accepted by the Government, no reasonable justification has come forth, which would deprive the applicants the grant of identical pay scale. Had there been a case where recommendations having been accepted by the Government in its discretion, the applicants would have no indefeasible right to claim the pay scale. One of the points raised is financial constraint in accord of benefits, which as a trite law, has not been found to be a valid defence by the Government, as a right of an employee cannot be defeated on this technical issue. In the matter of parity of pay scale, financial constraint cannot be a defence as ruled by the Apex Court in Union of India vs. Atonomic Engery Workers Staff Union, 2005 (1) ATJ (HC) (Bombay)
92. 36
54. As regards opening of flood gate litigation and administrative chaos, it is held to be no ground to take away the valuable right of a person under the Constitution by the Apex Court in Coal India Ltd vs. Saroj Kumar Mishra, 2008 (2) SCC (L&S) 321. In G.S. Uppal (supra), financial constraints have not been found to be good ground on established implementation of doctrine of equal pay for equal work.
55. A discriminatory and contradictory stand is antithesis to the fairness in law. As the issue of NFSG of RS.8000-13500 to the OSs in case of CBI, a non-
secretariat office at par with CSS/CSSS, decision in S.C. Karmakar (supra) was affirmed by the High Court of Delhi. Even the decision of the Tribunal in the case of R&AW Department has been implemented by the Government by grant of pay scale/NFSG to the concerned SOs, by order dated 19.01.2009 and also the SOs/PSs in AFHQ were allowed the pay scale on 25.09.2008. This clearly shows that the 6th CPC recommendations in para 3.1.9 have been adhered to not only in the case of SOs/PSs of the CSS/CSSS but also in the case of SO/PSs in other Organisations, who have had historical parity. As such, exclusion of the CAT employees and not meeting out the same treatment in respect of Grade Pay without any intelligible differentia having reasonable nexus with the object 37 sought to be achieved, is an unreasonable classification and an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India.
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 38 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."
25. In the present case, there is no pleading in the counter affidavit that the technical and educational qualifications of the tailors in different departments under the aegis of defence department were different or they were doing dis-similar jobs involving different and onerous skills. Of course, employees in the same cadre can certainly be placed in different pay scales but that would be, if it is shown that one set of employees has higher technical or education qualifications or performs more onerous duties vis-à-vis the other or the like, which is not the case in the present O.A, at least no such case has been pleaded. It is a settled law that where there is complete parity it would be highly discriminatory to treat employees differently merely on account of the two coming from two different sources.
3926. Holding so, in favour of the applicants, we find that no case let alone a plausible or justifiable plea has been put up by the respondents to place the applicants in a semi- skilled category having lower scale of pay. The applicants as tailors in the COD perform the same duties as tailors in other departments of the respondents. Nothing has been alleged or shown that the tailors in different departments of the respondents are performing onerous duties or for any reason they should be shown as a different category viz. a viz. the applicants. One cannot accept that the same post can have two different pay scales, as in present case, simply on the ground of the tailors working in different department of the defence establishment when there is no material on record to show that they are doing different work or more onerous, more so, when by issuing SRO No. 38 dated 18.12.2009, the respondents acknowledge that the entire class of tailors working in the defence establishment are in the same class as to be entitled to same scale of pay. If the applicants are in skilled grade post 2009, it would defy logical reasoning to say that pre 2009, they were not skilled grade since the nature of the jobs and skills were the same. Thus, apart from the principle that employees holding same posts and doing same duties cannot be discriminated in matters pertaining to categorisation and wages with reference to the source of appointment, we find no justifiable cause to treat the tailors working 40 in different departments of the defence establishment as forming a different and distinct categories.
27. A faint argument was made by respondents that in exercise of the power of judicial review the Tribunal cannot direct the respondents to frame statutory rules or amend the existing statutory rules framed under Article 309 in a specific manner so as to alter the conditions of service of the civil servants. There is no dispute with this proposition of law. The Tribunal has no intention to direct the respondents to frame rules in a particular manner. That does not prevent the Tribunal from examining the issue of discrimination and consequently quash the offending provisions of any statute, particularly the delegated legislation, or to issue a prerogative direction to accord similar treatment to equally circumstanced categories to prevent or even abort a discriminatory action.
28. The applicants in the instant case are legally entitled to the similar treatment and parity in categorisation and pay scale, granted to similarly situated persons, in the similar circumstances, as envisaged under Articles 14 and 16 of the Constitution of India, in view of the ratio of law laid down by Hon‟ble Apex Court in case of Rajendra Yadav Vs. State of M.P. and Others 2013 (2) AISLJ, 120 wherein, it was ruled that the concept of equality as enshrined in Article 14 of the Constitution of 41 India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the Doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. It was also held that the administrative action should be just on the test of 'fair play' and reasonableness.
29. Thus, seen from any angle, we are of the firm view that the applicants are also entitled to skilled worker categorisation and for re- fixation of their pay scale similar to their counterparts in E.M.E.
30. Question of limitation was raised by LC for respondents and arguing that the O.A is barred by period of limitation as envisaged by Section 21 of the Act.
31. It has been argued by learned counsel for respondents that the applicants in this OA are tailors in Central Ordnance Depot (in short C.O.D.) wing of the Ministry of Defence with separate Recruitment Rules from the tailors of EME wing. Hence, prima facie, the tailors of C.O.D) cannot claim parity with the tailors of EME wing under Article 14 as they are governed 42 under different rules. The principle of equal pay for same work applies to the people who are governed under same rule. For example, out of two employees of same service, doing exactly same work, might be getting different salaries depending on their seniority. Or one employee may earn an advance increment as per the rules, which may not be applicable to other employee. Just because the Ministry is same, i.e. MOD, parity in pay cannot be claimed as a matter of right as the source of recruitment and the service rules applicable to both the groups are different. Moreover, there is the issue of delay in claiming parity with the tailors of EME wing for which cause of action arose on 11.05.1983 and the applicants first agitated this issue in the year 2000 when they filed OA before the Tribunal.
32. On the other hand, LC for applicants submitted that the cause of action is based on "Recurring/successive wrongs" which occur periodically; each wrong giving rise to a distinct and separate cause of action and in the present case, denial of the pay scale to the applicants is a recurring wrong and therefore the present O.A. is not barred by period of limitation.
33. Tracing the background of the present case, it comes out that the applicants (1) made representation in May 2001 with the order 43 dated 27.3.2001 in OA No. 349/2000 and copy of order dated 19.10.1995 of Central Administrative Tribunal, Guwahati; (2) representation was decided by the department vide order dated 12.2.2003 and which order was quashed on 29.7.2009; (3) Applicants on basis of order of Tribunal made representation dated 26.8.2009 which was replied by the department vide letter dated 17.11.2009; (4)Gazette published on 26.12.2009 wherein all tailors (including applicants) were given the designation of skilled tailors and equal pay scale but prospectively from 2009; (5) Applicants filed present application on 14.12.2010.
34. On this aspect, learned counsel for applicants has referred to M.R.Gupta v. Union of India, (1995) 5 SCC 628, and Union of India and others v. Tarsem Singh, (2008) 8 SCC 648. In M.R.Gupta v. Union of India (supra), it has been held by the Hon'ble Supreme Court that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. In Union of India and others v. Tarsem Singh (supra), it has been observed by the Hon'ble Supreme Court that the principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes. A "continuing wrong" refers to a 44 single wrongful act which causes a continuing injury. "Recurring/successive wrongs" are those which occur periodically; each wrong giving rise to a distinct and separate cause of action. A belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to be said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury.
35. And in H.S.Shekhwat v/s The Union of India, 2004 (1) Administrative Total Judgments 45, the Central Administrative Tribunal, Jaipur held that the grant of higher scale of pay give rise to continuing cause of action and cannot be considered as hit by limitation.
36. The last word on this facet is the law laid down by Hon'ble Apex Court in M.R.Gupta v/s Union of India, 1995 SCC (L&S) 1273.
37. In the case of MR Gupta v. Union of India 1995 SCC (5) 628, the dispute was fixation of pay at the time of joining as per the FR 22-C with addition of one increment as per the rules, which was not allowed by the department.
45Hon'ble Apex Court held in that case as under:-
"The Tribunal misdirected itself when it treated the appellant's claim as 'one time action' meaning thereby that it was not a continuing wrong based on a recurring cause of action. The claim to be paid the correct salary computed on the basis of proper pay fixation, is a right which subsists during the entire tenure of service and can be exercised at the time of each payment of the salary when the employee is entitled to salary computed correctly in accordance with the rules. This right of a Government servant to be paid the correct salary throughout his tenure according to computation made in accordance with rules, is akin to the right of redemption which is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists, unless the equity of redemption is extinguished."
38. In the instant OA the dispute was upgradation from semi skilled to skilled category at par with the tailors of EME department as per the order dated 11.05.1983. It was not a dispute on fixation of pay as per rules as in MR Gupta case (supra), but the claim for parity in upgradation of the grade. Hence, the limitation will be applicable here from the date of cause of action, which is 11.05.1983 when order was issued to grant higher grade to 46 the tailors of EME wing of the Ministry of Defence (in short MOD).
39. It was further held in M.R. Gupta (supra) that "The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc. would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation 47 existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation the application cannot be treated as time barred since it is based on a recurring cause of action."
40. However, in this case, the applicants of C.O.D. wing will be entitled for the benefit partly as prayed for in the OA for the reasons that applicants have first taken legal recourse in the year 2000 after CAT Guwahati Bench allowed the benefit to 17 tailors of the C.O.D wing of MOD, vide order dated 19.10.1995 which was implemented by MOD vide order dated 15.10.1996. Subsequently there were similar orders of CAT dated 8.3.2000, 6.9.2000 and dated 21.8.2002 (page 22-23 of Suppl. Affidavit of the applicant filed on 9.4.2013) extending similar benefit. Hence, the applicants were within limitation when they filed OA No. 349/2000 (para 4.7 of OA). Then they went on agitating the matter before Tribunal, leading to the order dated 29.7.2009 of this Tribunal in OA No. 189/2004 filed by the applicants. In compliance to the order dated 29.7.2009, the respondents passed the impugned order dated 11.11.2009 and 17.11.2009 (Ann. A-7) which has been impugned in this OA. The applicants having been agitating the matter since 2000 when the benefits were extended to other tailors of C.O.D. by order of this Tribunal. Hence, their claim is well within the 48 limitation and there is no delay for these reasons. It is correct to say that it is a continuing/recurring cause of action and the ratio of MR Gupta judgment is applicable to the OA. The applicants have filed the OA within the limitation period as stated above.
41. The arguments of the applicants of C.O.D. Wing for parity with the tailors of EME wing who have been extended the benefit of higher pay scale of skilled category as per the Tribunal's orders mentioned above, (starting from Guwahati, followed by Chandigarh Bench) is valid, since they have agitated the dispute within limitation as stated above.
42. The higher pay scale as claimed has already been allowed by the Government to some tailors of C.O.D. w.e.f. 2010 in pursuance to the notification in S.R.O. 38 dated 18.12.2009 (Annexure A-8), which has also been admitted in the Counter Reply. Hence, the question is whether the applicants will be entitled to the benefit prior to 2010 w.e.f. 16.10.1981 as claimed. They will be entitled to get the benefit from 16.10.1981 as has been extended to other tailors of the C.O.D. by virtue of the orders of this Tribunal in different OAs in respect of the tailors of C.O.D. wing.
43. The judgment of the Tribunal Chandigarh Bench dated 18.5.2016 in OA No. 1123/2015 (enclosed 49 to the Suppl. Counter Affidavit of the respondents) is not applicable in this case, as the applicants in OA No. 1123/2025 did not agitate the dispute prior to 2015, due to which their claim was barred by limitation. But the applicants in present OA are agitating the issue since year 2000 and they are well within limitation as discussed above. Hence, the facts in the OA No. 1123/2015 are distinguishable from the facts of the present OA before us, for which the judgment dated 18.5.2016 will not be applicable to this OA.
44. Before parting, we take note of the arguments of LC for applicants wherein he has referred to the decision of Hon'ble Delhi High Court in Smt. Bhagwati v/s UOI and ors decided on 19.08.2010 which restored the decision dated 27.1.2003 in O.A 1110/2001 passed by the Tribunal at Delhi which relying upon the decision dated 19.10.1995 in Shri Nripendra Mohan v/s UOI and ors of Central Administrative Bench, Guwahati gave relief to the petitioner therein. In the Guwahati case, the Tribunal directed the respondents to declare the applicants in the tailor grade as 'skilled workers' and relief of arrears of pay etc. LC for applicants further submitted that when a particular set of employees are given relief by Court, all other identically situated persons should be treated alike by extending same benefit and not doing so would amount to discrimination and be violative of Article 14 of the Constitution of India and therefore, in 50 the present case, the applicants are entitled to equal treatment as given to other tailors in the aforementioned judgments.
45. There cannot be any dispute about the preposition of law as argued by learned counsel. In State of U. P and ors v. Arvind Kumar Srivastava and ors, (2015) 1 SCC 347, Hon'ble Apex Court explained the principle of equal treatment:-
"23. The legal principles which emerge from the reading of the aforesaid judgments, cited both by the appellants as well as the respondents, can be summed up as under:
(1) Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not 51 approach the Court earlier, they are not to be treated differently.
(2) However, this principle is subject to well recognized exceptions in the form of laches and delays as well as acquiescence.
Those persons who did not challenge the wrongful action in their cases and acquiesced into the same and woke up after long delay only because of the reason that their counterparts who had approached the Court earlier in time succeeded in their efforts, then such employees cannot claim that the benefit of the judgment rendered in the case of similarly situated persons be extended to them. They would be treated as fence-sitters and laches and delays, and/or the acquiescence, would be a valid ground to dismiss their claim.
(3) However, this exception may not apply in those cases where the judgment pronounced by the Court was judgment in rem with intention to give benefit to all similarly situated persons, whether they approached the Court or not. With such a pronouncement the obligation is cast upon the authorities to itself extend the benefit thereof to all similarly situated person. Such a situation can occur when the subject matter of the decision touches upon the policy matters, like scheme of regularisation and the like (see K.C. Sharma & Ors. v. Union of India (supra). On the other hand, if the judgment of the 52 Court was in personam holding that benefit of the said judgment shall accrue to the parties before the Court and such an intention is stated expressly in the judgment or it can be impliedly found out from the tenor and language of the judgment, those who want to get the benefit of the said judgment extended to them shall have to satisfy that their petition does not suffer from either laches and delays or acquiescence." (Read with advantage Premchand Somchand Shah vs. Union of India, (1991) 2 SCC 48, State of U.P., vs. Dayanand Chakrawarty, (2013) 7 SCC 595 and Virendra Krishna Mishra v. Union of India, (2015) 2 SCC 712).
46. It would be pertinent to note that in the present case, we are dealing with the question of disparity between the two groups of tailors belonging to C.O.D. and E.M.E. branch of the Ministry of Defence and essentially the question in dispute in present application is whether the applicants being tailors in C.O.D. were entitled to be categorized as skilled workers category which was given to the tailors in E.M.E.
47. In the circumstances and for the aforesaid reasons, the OA is partly allowed for those applicants who were parties in OA No. 349/2000 and looking to the contents of the letter dated 11.8.1983 (Annexure A-2) and the orders of other Tribunals passed in respect of other 53 tailors of the C.O.D. allowing such benefit of upgradation, the order is passed in this OA as under:-
I. Respondents are directed to take the required sanction and administrative action to declare the applicants in the tailors grade as 'skilled workers' and to grant them thereafter subject to the sanction, upgrade the pay scale of those applicants (or their legal heirs) who were also the parties in the OA No. 349/2000 at par with other tailors who were granted the same pay scale in pursuance of the order of Guwahati Bench of this Tribunal in OA No. 158/1994, with all consequential service benefits except for the arrear salary, which will be admissible from the date three years prior to the filing of the OA No. 349/2000 and for the period prior to that date their salary will be fixed on notional basis. The applicants who are retired will also be entitled for consequential additional retiral dues including revised pension as per the rules.
II. The respondents are directed to carry out the aforesaid exercise within a period of four months from the date of receipt of a certified copy of this order.
III. In respect of the applicants who were not parties in the OA No. 349/2000, this OA is dismissed on the ground of being barred by 54 limitation under section 21 of the Administrative Tribunals Act, 1985 following the judgment dated 18.05.2016 of Chandigarh Bench of this Tribunal in OA No. 1123 of 2015.
IV. It would be appropriate to clearly mention in the order that this judgment will be applicable for the applicants of this OA taking into consideration the facts of this case due to which this judgment should not be taken as a precedent to apply it for other cases.
48. The OA stands disposed of in terms of the directions above. No costs.
(Rakesh Sagar Jain) (Gokul Chandra Pati) Member (J) Member (A) Manish/-