Central Administrative Tribunal - Delhi
Mr. B.B. Garg S.I. Gr. Iv vs Union Of India Through on 27 July, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 1542/2008 MA 1175/2008 New Delhi this the 27th day of July, 2011 Honble Mr. M.L. Chauhan, Member (J) Honble Mr. A.K. Jain, Member (A) 1. Mr. B.B. Garg S.I. Gr. IV DGHS, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi 2. Mrs. Sharda Mahajan 3. Mrs. Veena Abott 4. Mrs. Renu Kakkar 5 Smt. Savitri Takhtani 6 Smt. Santosh 7. Smt. Asha Sharma 8. Smt. Mohini 9. Smt. Lakshmi 10. S.N. Suri 11. Ms. Vinod Gulati 12. G.P. Singh 13. S.R. Dixit 14. M.C. Das 15. Mr. R.S. Manral 16. Mr. R.S. Panwar 17. Mr. Vinod Kumar 18. Mr. V. Suresh 19. B.K. Sharma 20. Mr. R.C. Katnauria Applicants 2-20 working in N.S.S.O. (F.O.D.) East Block-VI, R.K. Puram, New Delhi 21. Mr. S.K. Sharma Ministry of Water Resources CGO Complex, New Delhi 22. Mr. O.P. Giri Ministry of Water Resources CGO Complex, New Delhi 23. Mr. R.L. Gupta 24. Ms. Rajkumari Applicants 1, 23-24 working in DGHS, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi Applicants (Through Shri Sachin Chauhan, Advocate) VERSUS 1. Union of India through its Secretary, Ministry of Water Resources, Shram Shakti Bhawan, New Delhi 2. Chairman, Central Water Commission, Sewa Bhawan (Ministry Water Resources), R.K. Puram, New Delhi 3. The Under Secretary, Central Water Commission, Ministry of Water Resources, Room no. 323, Sewa Bhawan, R.K. Puram, New Delhi 4. Union of India, Through its Secretary, Ministry of Statistics & Programme Implementation Patel Bhawan, Parliament Street, New Delhi Respondents (Through Shri R.K. Sharma with Shri J.B. Mudgil, Advocates) O R D E R Mr. A.K. Jain, Member (A):
This OA has been filed jointly by 24 applicants having common grievance and seeking same relief. The prayer of the applicants is to direct the respondents to grant upgraded replacement scale of Rs.5000-8000 with effect from 01.01.1996 along with all consequential benefits pursuant to grant of such upgraded scale.
2. The applicants are working as Statistical Investigator Grade IV with the NSSO (FOD) (Sl. 2 to 20), Ministry of Health and Family Welfare (Sl. 1,23 and 24) and CWC (Sl. 21 and 22). Prior to creation of Subordinate Statistical Service (SSS), they were working as Senior Computers in the Central Water Commission in the scale of Rs.1400-2300 (pre-revised prior to V CPC). The case of the applicants is that in paragraph 81.17 of the report of V CPC it was inter-alia recommended that the statistical function posts in the scale of Rs.1400-2300 be upgraded to the scale of Rs.5000-8000. In pursuance of the said recommendations of the V CPC, the Ministry of Planning & Programme Implementation, Department of Statistics, issued office memorandum no.11025/7/97-ISS-B dated 30.06.1998 (Annexure A/3) in relation to grant of upgraded pay scales to the holders of statistical function posts in Group B and C. In the said O.M., it was stated that Ministries/ Departments would take necessary steps to upgrade the scales of various categories of statistical post holders mentioned therein w.e.f. 01.01.1996. It was further stated that Rs.5000-8000 was to be upgraded replacement scale of the pre-revised scale of Rs.1400-2300. While in all other Ministries/ Departments, holders of statistical function posts in the scale of Rs.1400-2300 were granted replacement scale of Rs.5000-8000, the same was not implemented in CWC/ Ministry of Water Resources Development (MOWR) and the applicants have been denied the same w.e.f. 01.01.1996. The applicants submitted representations but no action was taken by the respondents. Aggrieved by the inaction of the respondents, the applicants filed O.A. No.1552 of 2006 before this Tribunal which was disposed of with direction to the respondents to dispose of representation of the applicants. In pursuance of the said order of the Tribunal, O.M. dated 08.11.2007 as contained in Annexure A/11 was issued by the respondents denying the claim of the applicants.
3. The applicants have further submitted that the statistical function posts in CWC before V CPC were Senior Computer in the scale of Rs.1400-2300, Prof. Asstt. (Stat)/ Research Asstt.(Stat) in the scale Rs. 1400-2600 and Sr.P.A.(Stat)/ Sr.R.A.(Stat) in the scale Rs.1640-2900. The pay scale of Rs.1400-2600 did not exist in the hierarchy of promotional post in the cadre i.e. Prof. Asstt. (Stat) of CWC/MOWR. The posts were erroneously upgraded to 1400-2600 scale vide CAT judgment in OA 1776 of 1988 dated 13.02.1992. Moreover, this scale of pay S-9 as shown by V CPC merged with the scale of Rs.1600-2660 vide DOP&T O.M. No. AB-14017/2/97-Estt. (RR) dated 25.05.1998 and then upgraded to Rs.5500-9000 by the V CPC which was promotional scale of Senior Computers. However, by not doing this upgradation, the CWC/MOWR has denied financial/seniority benefits to the incumbents in the pre-revised scale of Rs.1400-2600 which has mistakenly been compared with the scale of Rs.1400-2300 in other Ministries/ Departments. These are two different scales which fall under S-9 and S-8 respectively. In pursuance of the O.M. dated 30.06.1998 issued by the Ministry of Planning & Programme Implementation the CWC upgraded scale of Sr. P.A. (Stat) to Rs. 6500-10,500 from Rs. 5500-9000 w.e.f. 01.01.1996.This was done under para 81.17 of the V CPC and hence, the department partially implemented the OM of 30.06.1998 and did not upgrade the scale of Senior Computor to Rs. 5000-8000. So the department has created the whole anomaly in the sense that it has upgraded the pay scale of Sr. R.A. (Stat)/ Sr. P.A. (Stat) in compliance with the same OM and has not upgraded the two immediate feeder posts of P.A. (Stat) & Senior Computer which hold the pay scale of Rs.1400-2300 & Rs.1400-2600 respectively.(Reference paragraph 5 of rejoinder filed by the applicant.) Again comparison of post of P.A. (Stat) with J.I./ Investigator/ Statistical Asstt. of other Ministries is entirely wrong. The educational qualifications and duties and responsibilities of the post of Senior Supervisor are same as those of J.I./ Investigator/ Statistical Asstt. in other Ministries/ Departments. In fact, in the O.M. dated 30.06.1998 of Ministry of Planning & Programme Implementation, in the table indicating upgraded replacement scales for various statistical function posts, at Sl.4 mention has been made about J.I./Investigators/Statistical Assistants etc. The word etc. has been used because posts carrying same duties and scale had different nomenclature in various Ministries/Departments. In CWC, the equivalent post was Senior Computer. Thus, the denial of upgraded scale to the applicants amounts to discrimination and it violates Article 14, 16 and 21 of the Constitution of India.
4. The respondents have submitted that prior to the V CPC, four posts namely Senior Professional Assistant (Stat), Statistical Assistant/Professional Assistant (Stat, Senior Computers and Junior Computers existed in CWC. All these posts were placed in their respective normal replacement scales as recommended by V CPC:
Sl. Name of posts Pay scale before V CPC Pay scale recommended by CPC 1 Senior Professional Asstt. (Stat) Rs.1640-2900 Rs.5500-9000 2 Statistical Asstt./ Professional Asstt./(Stat.) Rs.1400-2600 Rs.5000-8000 3 Senior Computers Rs.1400-2300 Rs.4500-7000 4 Junior Computers Rs.950-1500 Rs.3050-4590
5. It is further contention of the respondents that from this table it can be seen that Statistical Asstt./Professional Asstt. (Stat.) are promotional post of Senior Computer. In fact the posts of Senior Computer have two promotional channels i.e. to Professional Asstt. (HM) and Statistical Asstt./Professional Asstt. (Stat.) and further promotions in the two streams. In some other Ministries/Departments the posts of Statistical Asstt./Professional Asstt. were in pre-revised scale of Rs.1400-2300.
6. The Ministry of Planning & Programme Implementation, after getting approval of the Ministry of Finance (Deptt. of Expenditure) recommended grant of upgraded scale of pay w.e.f. 01.01.1996 to following Group B and Group C Statistical function posts in different Ministries and Departments, as recommended by V CPC vide OM dated 30.06.1998:
S. No. Post Pre-revised scale of pay Normal Replacement scale of pay (in Rs.) Upgrades replacement scale of pay (in Rs.) Para of 5th CPCs Report
1. Supdt. FOD 1640-2900 5500-9000 6500-10500 81.15
2. A.S.FOD 1600-2660 5000-8000 5500-9000 81.16
3. Invstr. FOD 1400-2300 4500-7000 5000-8000 81.16
4. J.I./Invstr./Stat. Invstr./Stat. Asstt. etc. 1400-2300 4500-7000 5000-8000 81.17
5. S.I./Sr. Stat. Invstr./Stat. Asstt. etc. 1640-2900 5500-9000 6500-10500 81.17
7. In compliance, CWC granted replacement scale of Rs.6500-10500 to Sr. Professional Asstt. (Stat.) who were in pre-revised scale of Rs.1640-2900 vide OM dated 24.09.1999 (Annexure R/3). However, in case of Statistical Asstt/Professional Asstt. (Stat.) of CWC no upgradation of pay scale was necessary as they were already in upgraded replacement scale of Rs.5000-8000 by virtue of being in pre-revised scale of Rs.1400-2600. The applicants i.e. Senior Computers, although being feeder grade to Statistical Asstt./Professional Asstt. (Stat.) of CWC, by virtue of being in pre-revised scale of Rs.1400-2300, have claimed to be equivalent to the post of Junior Investigator/Investigator/Stat. Asstt. mentioned in Sl.4 of the table in para 4 of OM dated 30.06.1998 issued by Ministry of Planning & Programme Implementation. This was not found tenable. In fact the posts of Jr. Investigator/Investigator/Stat. Asstt. are equivalent to the post of Stat. Asstt./Prof. Asstt. (Stat.) of CWC.
8. On receipt of representation of the applicants, the case for upgradation of pay scale of Senior Computers was examined in detail in Central Water Commission (CWC) in consultation with MOWR and the Ministry of Statistics & Programme Implementation, which is the nodal Ministry. That Ministry vide their note dated 21.12.2006 (Annexure R/2) have opined that upgradation of the scale of Senior Computer of CWC from existing Rs.4500-7000 to the proposed scale of Rs. 5000-8000/- would be anomalous as it would equate the pay scale of feeder post to that of the promotional post. As such the proposal for upgradation of pay scale of Senior Computer to Rs.5000-8000/- was not found tenable.
9. The respondents, relying upon the judgment dated 12.03.1997 of Honble Supreme Court of India in the matter of Union of India & Another Vs. P.V.Hariharan and Another, [1997 SCC (L&S) 838] have further submitted that the fixation of pay scales is the function of Government and scope of judicial review is very limited in such matters. Unless a clear cut case of hostile discrimination is made out, no judicial interference is called for. In view of submissions made by them, the respondents have prayed for dismissal of the OA.
10. We have carefully perused the records and considered the submissions made by the parties.
11. Before we proceed to discuss the issue, it is important to note the recommendations of V CPC in para 81.17, which reads as follows:
81.17 A large number of posts of Junior and Senior Statistical Investigators in the scales of Rs.140-2300 and 1640-2900 are spread over different Ministries and offices of the Government of India. We observe that some of these posts are isolated and the chances of promotions for the incumbent in such cases are very bleak. We recommend that all such posts with statistical functions be constituted into a subordinate statistical service and all recruitment to the ISS Cadre Controlling Authority. All posts of Junior Statistical Investigator in the scale of Rs.1400-2300 be upgraded and given the replacement scale of Rs.1600-2660. All Junior Statistical Investigators/Statistical Assistants in the scale of 1400-2300 will henceforth be called Statistical Investigators Grade-II. All posts of Senior Statistical Investigators/Assistants at present in the pay scale of Rs.1640-2900 may be given the replacement scale of Rs.2000-3500 and be called Statistical Investigators Grade-I. At a level of Statistical Investigator Grade-II, recruitment may be taken up with graduation in statistic as the minimum qualification. The entrants in this scale would move through the replacement scale of Rs.1640-2900 and Rs.2000-3500 in a time bound manner. Post Graduation may be made the minimum qualification for entry to 50% of the post of Statistical Investigator Grade-I. The entrants to this level will move through the replacement scale of Rs.2375-3750 and the entry scale of ISS Group A in a time bound manner.
12. The recommendation is in two broad parts; firstly to constitute all posts with statistical functions in the scales of Rs. 1400-2300 to Rs.1640-2900, spread over different Ministries and offices in Government of India, into a Subordinate Statistical Service (SSS) and to centralise all recruitments to the feeder posts in Indian Statistical Service, placed under ISS Cadre Controlling authority and; secondly recommendations relating to upgradation of the posts of Junior Statistical Investigators/Statistical Assistants and Senior Statistical Investigators/Assistants, re-designating the same and qualifications for the entrants in re-designated posts etc.
13. This clearly shows that prior to constitution of SSS, statistical functional posts were spread over different Ministries/departments, some of the posts were assorted posts and the recruitments to such feeder posts of ISS was not centralised. Again, there was no specific recommendation for the posts of Senior Computers by the V CPC. The word statistical functions posts has been used in the recommendation relating to constitution of Subordinate Statistical Service. As regards upgradations, mention has been made of the posts of Junior Investigators/Statistical Assistants in so far as scale of Rs.1400-2300 is concerned. No mention of the post of Senior Computer has been made and hence it is a question of equivalence which lies within the competence of the Government.
14. In the Office Memorandum dated 30.06.98 of Ministry of Planning & Programme Implementation which is nodal Ministry for the Statistical Service, it has clearly been noted in paragraph 4 that Ministry of Finance (Department of Expenditure) agreed for the grant of upgraded scale of pay w.e.f. 01.01.1996 for Group B & C statistical function posts as stated therein subject condition that the administrative Ministries/Departments of these posts agree to recommended changes in RRs to the extent of direct recruitment and educational qualification etc. Thus it is a conditional order.
15. It is also clear from the submissions made by the parties that the CWC in consultation with MOWR treated the posts of Statistical Assistants/Prof. Assistant (Statistics) in the scale of Rs.1400-2600 at par with Junior Investigator and granted the normal replacement scale of Rs.5000-8000 which was in any case equivalent to upgraded scale recommended by the V CPC for the posts of Jr. Investigator. They did not agree to upgrade the scale of Senior Computer to the scale of Rs.5000-8000 as it would have created anomalous situation of promotional and feeder posts being in the same scale. The matter was also referred by the CWC/MOWR to the nodal Ministry which issued the OM dated 30.06.98. The nodal Ministry also observed that the upgradation of Senior Computer in CWC would create anomalous situation.
16. It also emerges from the pleadings of the applicants that they have not denied that anomalous situation would arise if such upgradation is given. Their plea is that this anomaly has been created by partial implementation of the order dated 30.06.1998 by CWC/MOWR. While the respondents have given upgraded scale of Rs.6500-10,500 to Senior Prof. Assistant (Statistics) w.e.f. 01.01.1996, they have not given the scale of Rs.5500-8000 to Statistical Assistant/Prof. Assistant (Statistics) in the scale of Rs.1400-2600 which was merged with the scale of Rs.1600-2660 as per DOP&T OM dated 25.05.1998 as also noted against S-9 grade by V CPC. Consequently, the applicants are also being denied their due upgraded scale. This argument of the applicant is not quite convincing. This argument of the applicant is based on alleged denial of upgraded scale to the incumbents of posts in the scale of Rs.1400-2600 but those incumbents are not party before us claiming the said relief. The averment of the applicants that the scale of Rs 1400-2600 is not in the hierarchy of promotion is also not convincing. The applicants themselves have stated that the posts were upgraded to this scale as per order of the CAT in OA 1776 of 1988. There is no averment that after such upgradation, any one was promoted to the post of Sr. S.A. from Senior Computer directly.
17. The applicants have also emphasized on the point that their post i.e. Senior Computer is equivalent to the post of Statistical Assistant in the scale of Rs.1400-2300 in other Ministries/Departments because educational qualification, pay scale and functions and responsibilities of the posts are same. Hence, denial of the upgraded scale as recommended by the V CPC to them is discriminatory and violative of Articles 14, 16 and 21 of the Constitution. In this connection, it is noted that these posts were in different Ministries/Departments and recruitment was also not done centrally. As such merely on the ground of equality of pay scale or educational qualifications, such equivalence cannot be claimed. As regards functions and responsibilities, the applicants may have their own perceptions but in our opinion this lies within the competence of the government who have better idea about the functions and the duties of posts in different Ministries/Departments. In he absence of any specific recommendation of V CPC or specific order relating to Senior Computers in CWC, such equivalence can not be presumed especially when the organisation in consultation with their administrative Ministry and the nodal Ministry for Statistical Service has taken a considered decision in the matter in view of relevant facts and circumstances. In pursuance of the order passed in OA 1552/2006, the respondent authorities have also passed a detailed order giving reasons. The matter of deciding pay sale and equivalence of posts are certainly administrative functions of the Government and as observed by the Honble Supreme Court of India in the case of P.V.Hariharan (supra), unless a clear case of hostile discrimination is made out, there would be no justification for interfering with fixation of pay scale. We do not think that the instant case falls in this category.
18. In view of discussion in preceding paragraphs, it is our considered view that the instant case does not call for any interference by the Tribunal.
19. The OA is, therefore, dismissed being devoid of merit. No order as to costs.
( A.K. Jain ) ( M.L. Chauhan ) Member (A) Member (J) /dkm/