Central Administrative Tribunal - Delhi
D.G.O.F. Employees Association ... vs Union Of India on 18 October, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.39/2011
Order reserved on 09.04.2012
Order pronounced on 18.10.2012
Honble Mr. G.George Paracken, Member (J)
Honble Mr. Sudhir Kumar, Member (A)
1. D.G.O.F. Employees Association (Recognized)
Through its General Secretary
10-A, Saheed Kshudiram Bose Road,
Kolkata-700 001.
2. Shri Anuj Kumar Sen
10-A, Shaheed Kshudiram Bose Road,
Kolkata-700 001. -Applicants
(By Advocate: Shri R.N. Vasudevan)
Versus
1. Union of India
Through The Secretary,
Ministry of Defence, South Block,
New Delhi.
2. Union of India,
Through the Secretary
Ministry of Finance
Department of Expenditure
North Block, New Delhi-110001.
3. Director General Ordnance Factories/
Chairman, Ordnance Factory Board,
10-A, Shaheed Kshudiram Bose Road,
Kolkata-700 001.
4. Union of India
Through the Secretary,
Ministry of Personnel,
Public Grievances & Pensions,
Department of Personnel & Training,
North Block, New Delhi-110001. -Respondents
(By Advocate: Shri V.S.R. Krishna)
ORDER
Shri Sudhir Kumar, Member (A):
This case was filed by the applicants on 08.10.2010 with the Association through its General Secretary as the first applicant, and one individual Member of the Association in representative capacity as the 2nd Applicant. The applicants are aggrieved with the order of the Ministry of Defence dated 20.04.2010 communicated to them through the covering letter dated 07.06.2010 (Annexure A-2) and the reply issued by the Ordnance Factory Board (OFB, in short) to the 1st Applicant Association and the representative Applicant No.2 through letter dated 01.09.2009 (Annexure A-1), as the respondents have not approved the grant of upgradation of the pay scales of Assistants & Personal Assistants (PAs, in short) of Ordnance Factory Board, Headquarters (OFBHQ, in short) Formation, as has been given by them to the similarly placed employees of the Central Secretariat Service (CSS, in short) and the equivalent posts in Armed Force Headquarters Civil Service (AFHQCS, in short) cadre, New Delhi, and some other similar cadres. The applicants are aggrieved that the respondents have denied them the benefit eligible to them on the ground of applicability of paragraph 3.1.14 of the recommendations of the VIth Central Pay Commission (VIth CPC, in short), which ought not to have been made applicable to the Assistants and PAs of the OFBHQ Formation. The applicants have submitted that the re-fixation of their pay scales on the recommendations of the Vth Central Pay Commission (CPC, for short) of Rs.6500-10500/- is not covered by the paragraph 3.1.14 of the recommendations of the VIth CPC, but is rather clearly included in paragraph 3.1.9. of the VIth CPC recommendations, as the Assistants of OFBHQ have always enjoyed a historical parity with the CSS and AFHQCS cadres since 1975. They have, therefore, staked their claim to the revised pay scale, as indicated in Part-B, Section-II Sl.No.1 of the Central Defence Service (Revised Pay) Rules, 2008, which is a modified adoption by the Union of India of the recommendations of paragraph 3.1.9 of the VIth CPC. In the result, they have prayed for the following reliefs:-
(a) Set aside the impugned orders dated 1.9.2009 of Ministry of Defence, Ordnance Factory Board vide their letter No. 36(15)/Pay-Scale/2007/HQ/NG dated 1.9.2009 and their letter No.36(15)/Pay-Scale/2007/HQ/NG. dated 7.6.2010 enclosing the MOD letter dated 20.4.2010 conveying the decision of Ministry of Finance, Department of Expenditure through Defence/Finance (annexed hereto as Annexures A-1 & A-2 respectively), direct the Respondents to maintain parity of pay scale of the members of the Applicants vis-`-vis similarly placed employees of the CSS and CSSS and AFHQS/AFHQSS and equivalent cadres in other departments and to grant consequential benefits as has already been granted to such similarly placed employees including the benefit of higher grade;
(b) Grant pre-revised pay scale of Rs.7450-11,500 to the Applicants notionally w.e.f. 1.1.1996 with actual benefit w.e.f. 1.1.2006 with G.P. of Rs.4600/- at par with similarly placed employees of CSS, CSSS and other equivalent cadres in other departments;
(c) Grant corresponding pay band with grade pay as recommended by the 6th CPC and approved by the Govt. of India vide Section II, Part B-1 of CDS (RP) Rules, 2008 i.e. para 3.1.9 (Modified by Govt.);
(d) To direct the Respondents to continue to maintain such parity in pay scale throughout.
2. The Registry had initially taken an objection to the filing of the OA at New Delhi, stating that a Petition for Transfer (PT) is required to be filed, but the learned counsel for the applicants has submitted that since in the present OA, the order impugned is the rejection of the representation of the applicants, which was passed in pursuance to the order dated 30.09.2009 in OA 240/2008 passed by this Principal Bench itself, and, therefore, the objection was ultimately waived by the Registry, and the OA was listed for hearing.
3. The matter was heard briefly on 16.09.2011 and 09.01.2012. It was brought to the notice of the Bench that in a recent judgment of a Coordinate Bench in OA 2102/2010 and OA 2114/2010, a common order had been passed on 16.05.2011, disallowing both the OAs dealing with the claim of parity of pay scales respectively to the Assistant Staff Officers, Staff Officers and the Stenographers of the Directorate General of OFB, represented through their Association. It was submitted by the respondents that the issues raised in the present OA are similar to the OAs already considered in the aforesaid judgments and, therefore, need not be re-adjudicated. This contention of the respondents was vehemently disputed by the learned counsel for the applicants. However, the case was finally heard, argued vehemently by both the sides, and reserved for orders on 09.04.2012.
4. In so far as the impugned order dated 07.06.2010 is concerned, the application was within the time. As a result, the MA No. 53/2011 filed for condonation of delay, if any, is therefore allowed.
5. The OFB has its wings situated at many places all over the country, and the Applicant No.1 Association has also claimed to be a recognized Association and with its presence all over the country. The list of the members of the Association, on whose behalf the General Secretary of the Association represented, was also filed by the applicants as Annexure A-4 (colly).
6. It is submitted by the applicants that the service to which they belong was constituted under the Director General Ordnance Factories Headquarters Civil Service Rules, 1977, framed by the President under Article 309 of the Constitution of India. It was submitted that in the Ordnance Factory Organization, the position of Assistants is filled up by promotion from the ranks of Upper Division Clerks (UDCs, for short) with at least five years of experience on a regular basis, and the UDCs are, in turn, appointed by promotion from the ranks of Lower Division Clerks (LDCs, for short) and that both the LDCs and UDCs are also governed by a parallel set of separate rules, namely Directorate General Ordinance Factory Headquarters Clerical Service Rules, 1977, again framed by the President under Article 309 of the Constitution of India. The said two sets of rules also govern the recruitment for the posts of Stenographers and Personal Assistants, and the posts of Personal Assistants are filled up by promotion from the posts of Stenographers with five years of experience.
7. An averment has been made by the applicants that till the 3rd Pay Commission, even prior to IVth CPC, recommendations of which were given effect to from 01.01.1986, parity had been maintained between the LDCs, UDCs, Assistants, Stenographers and Personal Assistants of the CSS and that of Respondent No.3 organization. It was submitted that the 4th Central Pay Commission had also recommended the same pay scales for the Assistants and Personal Assistants of both the CSS and the Respondent No.3 organization, and parity had been maintained for other posts too. Thereafter when the Assistants belonging to the CSS had filed an OA No.1538/87 before this Tribunal, praying for enhancement of their pay scale from Rs.1400-2600 to Rs.1640-2900, as per the directions of the Tribunal, the matter was referred to an anomaly committee, and finally culminated in the enhancement of their pay scales, as requested, through orders dated 31.07.1990 and 03.01.1991 issued by the Respondent No.2.
8. It has however been submitted that while ordering the applicability of the higher pay scale of Rs.1640-2900 to Assistants of the CSS, CSSS and other Ministries, an artificial embargo had been put on the same not being made applicable to the Assistants who had been appointed by promotion, and not through direct recruitment, by way of open competitive examination. When this discrimination between the promotees and direct recruits among Assistants was challenged before this Tribunal in OA No.199/92, by a judgment dated 21.12.1993, and an order of correction dated 13.05.1994 correcting certain clerical errors, this Tribunal had allowed the said OA, and directed the respondents to grant the promotee Assistants also parity in pay scales. Later, when the Vth CPC recommendations were implemented w.e.f. 01.01.1996, the respondents had upgraded the pay scales of the employees of the Respondent No.3 organization also at par with the upgradation of pay scales of Assistants and some Personal Assistants in the CSS and CSSS. The applicants have stated that as a result, till September, 2006, the members of the Applicant No.1 Association were receiving the same pay scales as were being paid to the Assistants and Personal Assistants in the CSS.
9. The applicants have submitted that a discrepancy occurred only when OM dated 15.09.2006 (Annexure A-6) was issued, which reads as follows:-
Subject : Upgradation of pay Scale of Assistants and PAs in CSS/CSSR.
The undersigned is directed to state that the issue of perceived anomaly in the pay scale of Assistants/PAs in CSS/CSSS vis-`-vis Inspectors/analogous posts in Central Board of Direct Taxes/Central Board of Excise & Customs has been engaging the attention of the Government for some time. It has now been decided that the pay scale of the posts of Assistants and Personal Assistants in Central Secretariat Service and Central Secretariat Stenographers Service respectively shall be upgraded and placed in the scale of Rs.6500-200-10500/- prospectively, from the date of issue of the orders.
2. This upgradation has been done as an exception specific to these two categories of posts. However, it has been decided that the entire issue of the pay scale of these two categories shall be referred to the Sixth Central Pay Commission, who shall examine ipso facto and take a holistic view including keeping in view horizontal and vertical relativities. Therefore, DoP&T may ensure that the entire issue right from its genesis (i.e. upgradation of the pay scale of Inspectors/analogous posts in CBDT/CBEC) with all the possible ramifications of this upgradation is referred to the Sixth Central Pay Commission for taking a holistic view.
3. This issues with the approval of Finance Miniser.
Sd/-
(Manoj Joshi) Office on Special Duty (IC)
10. The applicants have submitted that soon thereafter, the Ministry of Railways also upgraded the pay scales of Assistants and Personal Assistants and Stenographers Group A of the Railway Board Secretariat Service (RBSS, in short) and Railway Board Secretariat Stenographers Service (RBSSS, in short) through Annexure A-7 dated 19.10.2006. The applicants have submitted that thereafter the Armed Forces Headquarters Association and the Armed Forces Headquarters Section Officers Association also filed an application before this Tribunal, being OA No.95/2007, and again this Tribunal directed the respondents to consider and grant similar upgradation to those applicants also, which order was also implemented subsequently. They have submitted that simultaneously the Ministry of Parliamentary Affairs also, through their order dated 12.02.2007, and Central Vigilance Commission also, through their order dated 13.07.2007, implemented similar pay scales within their organizations.
11. The applicants of this OA also made a representation on 15.03.2007, and issued a reminder dated 10.08.2007 through Annexure A-9 (Colly), but when the respondents failed to take any decision, they filed OA No.240/2008 before this Tribunal, which was disposed of on 30.09.2008, with directions to the respondents to take a decision in the matter on the representation made by the Association. The applicants have submitted that thereafter the Respondent No.3 conveyed to them the decision of the Ministry of Finance, Department of Expenditure dated 01.09.2009, stating that the representation made by the present applicant Association in respect of the pay scales of Assistants and Personal Assistants of the Respondents No.3 organization, cannot be acceded to, through Annexure A-1 dated 01.09.2009, and the stand of the Ministry of Finance was as follows:-
The Ministerial staff Stenographers cadre in the Government can be categorized into 3 viz. (i) CSS/CSSS (ii) non CSS/non CSSS working in Headquarters of Central Government; and (iii) Ministerial/Stenographers cadre working in organizations outside the secretariat, OFB is an attached office and would come under category (iii) above. There is no lack of clarity regarding pay scales of category (iii) above. The same have been implemented as recommended in Para 3.1.14 of 6th CPC report. There is no justification for further upgradation of their pay scales. 6th CPC has granted parity between the pay scales of CSS/CSSS and Ministerial/Stenographers cadre in offices outside the Secretariat only up to Assistant level and the same has been implemented.
On the basis of the above, it appears that there is no justification for further upgradation of their pay scales.
12. The applicant Association represented against the same through Annexure A-11 dated 04.11.2009, pointing out that para 3.1.14 of the VIth CPC report ought not to have been made applicable to them, and requesting for a re-consideration of the decision taken in this regard. This representation was forwarded by the Respondent No.3 to the Respondent No.1, Ministry of Defence on 04.12.2009, through Annexure A-12, and a brief regarding the case was also sent on 02.03.2010.
13. Based upon this detailed description of facts, the applicants have claimed traditional parity and relativity in so far as the applicants are concerned vis-`-vis the similarly placed employees of CSS and CSSS, and have prayed for the historical parity being maintained. It was submitted that Respondent No.2, Ministry of Finance has wrongly considered the whole issue under Para 3.1.14 of the recommendation of the VI CPC rather than applying in their case the para 3.1.9 of the VI CPC, as modified by the Government before its implementation. The applicants have prayed that continuation of the anomaly would disturb the long tradition of maintaining the parity and relativity, and would be totally arbitrary & unjustified, and a failure of the exercise of the powers by the respondents for removal of inequalities.
14. Presenting the case in a Tabular form, it was prayed that merely because some organization does not have its seat in Delhi does not make its work less worthy or less onerous than that of one seated in Delhi, and that the place of work cannot be the criteria to determine the pay that a person can draw. It has been further submitted that parity cannot be denied or snatched away merely on the ground that the service in Respondent No.3 organization can be treated as a lesser service. It was submitted that the Respondent No.3 office has actually supported the claim of the applicants, and has been made the recommendations accordingly, but still the respondents are not implementing and granting them the upgraded pay scales. Therefore, the applicants had assailed the actions and inaction of the respondents, on the grounds that the impugned orders declining the historical parity are unlawful, and have been passed without any cogent reasons, and that the work being done by the applicants is in no way less than that of similarly placed employees of CSS, CSSS and other equivalent cadres in other similar departments.
15. It was also submitted that the Gazette Notification dated 09.09.2008 of the Respondent No.1, Ministry of Defence, regarding Revised Pay Scales for Certain Common Categories of Staff is not applicable in the instant case, as that has been issued only on account of merger of three pre-revised Vth CPC pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500, wherein some posts, which presently constitute feeder and promotion grades, have come to lie in an identical grade, because of the merger into a single pay band, and different levels of Grade Pay have been prescribed for the appropriate levels of former pay scales so merged.
16. The applicants have further taken the ground that Section II of the Notification dated 09.09.2008 in Part-B concerns Revised Pay Scales for Certain Common Categories of Staff. However, the disparity had occurred because two different headings Office Staff and Office Staff working in Organizations working outside the Secretariat, have been made by the VIth CPC, and different Paragraphs 3.1.9 and 3.1.14 have been applied to the two categories. However, they have taken the ground that the hierarchy as shown therein does not exist in the cadre of Private Secretaries nor Assistant Staff Officers of the Respondent No.3 formation, which clearly goes to show that its employees are concerned with the recommendations made under Para 3.1.9 only. A further ground of Non-Functional Selection Grade having been made applicable in certain other Organizations like CBI and RAW had also been taken.
17. It has, therefore, been contended by the applicants that when the VI CPC recommendations at para 3.1.9 has not only been made applicable to the Sections Officers and Private Secretaries in other organizations, in whose case historical parity with CSS has been maintained, exclusion of the Assistants and Personal Assistants in Respondent No.3 Organization amounts to an unreasonable classification, and invidious discrimination, without having any intelligible differentia, having reasonable nexus with the object sought to be achieved. It was further contended that when this Tribunal had, as early as in 1993, held that the applicants are entitled to parity in pay scales with the CSS and CSSS, and there has been no change or deviation, the respondents are duty bound to implement the revision in the pay scales of the applicants also at par with the pay scales of the employees of CSS/CSSS, since the parity already established earlier could not have been disturbed now, and the stand of the respondents taken now is totally arbitrary and in complete contradiction to their earlier actions, in having maintained traditional parity and relativity in so far as parity in pay scales is concerned. In the result, they had prayed for the reliefs as already re-produced above in the opening paragraph.
18. The respondents submitted their reply on 26.05.2011 through an affidavit sworn to by the Director of the Respondent No.3 Organization. The applicants thereafter filed their rejoinder on 22.07.2011, and an additional affidavit also on 27.01.2012, to which additional affidavit the respondents also filed a reply on 03.04.2012. The stand point of the respondents in their counter reply was that it has been stated by the Honble Apex Court in numerous cases that comparison can be made, and parity of pay scales may be sought, only amongst posts that are similarly placed, and not amongst dissimilar posts, and across different Organizations. It was further submitted that the Statutory Rules relating to the eligibility/appointment/recruitment conditions for the posts with which comparison is being attempted to be made, and parity of pay scales is being sought, are very different from the posts which the applicants hold. It was further submitted that the job description, nature of output and quality of output expected in the Respondent No.3 organization are also very different from the posts with which parity is being sought by the applicants. In this context, the respondents have sought shelter behind the Apex Courts Rulings in the following cases:-
i) State of Haryana vs. Tilak Raj 2003 AIR SCW 3382;
ii) State of Haryana vs. Haryana Civil Secretariat Personal Staff Association, Civil Appeal No.3518 of 1997 decided by Honble Supreme Court on 10.07.2002.
iii) Federation of All India Customs and Central Excise Stenographers vs. Union of India, AIR 1988 SC 1291 (1297) : (1988 3 SCC 81;
iv) MP vs. Pramod Bhartiya, (1993) 1 SCC 539;
v) State Bank of India vs. K. P. Subbaiah, 2003 AIR SCW 3436;
vi) Secretary Finance Department and others vs. West Bengal Registration Service Association and Others (AIR 1992 SC 1203;
vii) Harbans Lal and others vs. State of H.P. (Writ Petition(Civil) No.648/87 decided on 01.08.1989;
19. It was further submitted by the Respondents that on the aspect of judicial review of the matters of pertaining to pay scales, the Honble Apex Court has laid down the law through the following judgments:-
i) State of Bihar vs. Bihar Vetrinary Association, CA No.1507 of 2008 decided on 22.02.2008;
ii) Union of India vs. Hiramoy Sen, CA No.7232 of 2003 decided on 12.10.2007;
iii) Supreme Court Employees Welfare Association vs. Union of India, AIR 1990 SC 33;
iv) Shiba Kumar Dutta vs. Union of India, AIR 1998 SC 2911.
20. It was submitted that on receipt of the representation of the applicants, it was examined, and since the Respondent No.3 Organization is a non-Secretariat Organization, therefore, it was held that the recommendation of VIth CPC at para 3.1.14 of its report alone will be applicable in the case of Assistants and Personal Assistants of the Respondent No.3 Organization. It was further submitted that since the VIth CPC had recommended the merger of the erstwhile Vth CPC pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 w.e.f. 01.01.2006 into a single Pay Band, as a result Assistants in all offices of the Union of India outside the Central Secretariat have been placed in the identical pay structure of Pay Band-2 with the Grade Pay of Rs.4200/-, while the Grade Pay of Rs. 4600/- attached to the same Pay Band-2 has been extended only to the CSS/CSSS, AFHQS, IFS (B) and RBSS, and that the applicants do not belong to such Secretariat/Headquarters Services. It was submitted that since the Respondent No.3 Organization is a non-Secretariat Organization, the VIth CPC recommendations at para 3.1.14 of its report alone will be applicable, irrespective of the pre-revised Vth CPC Pay Scales and parity enjoyed by them. It was further submitted that there has been no deviation from the law as laid down by the Honble Apex Court in the cases cited above. It was also submitted that the decision of the Honble Delhi High Court in WP (C) No.7475/2007 & CM No.14234/2007 in Union of India & Ors. v. S.C. Karmakar & Ors., decided on 10.10.2007, and the decision of this Tribunal in the matter of Staff Side vs. Department of RAW (citation not provided), is applicable to the respective applicants of those cases only, and the present applicants were not a party in the aforementioned cases, and cannot derive the benefits of these two judgments.
21. It was further submitted that the directions earlier given by this Tribunal in 1993 were in the light of the recommendations of the IVth CPC, which directions cannot be ipso facto made applicable now after the implementation of the VIth CPC recommendations. It was submitted that the tradition of parity and relativity claimed by the applicants on historical grounds has since undergone a change in view of the specific recommendations of the VIth CPC made at para 3.1.14 of its report, which has already been implemented in the case of the present applicants. It was, therefore, prayed that the OA may be rejected.
22. In their rejoinder dated 22.07.2011, the applicants reiterated their stand point as already described in great detail above. It was further submitted that through the judgment dated 14.05.2007 passed in OA No.2591/2007, a Coordinate Bench of this Tribunal has already accepted the contentions of the applicants, and had directed the Ministry of Finance to re-consider the claims of the applicants, therein, in the light of the Apex Court decision in Randhir Singh vs. Union of India and others, (1982) 1 SCC 618. It was further submitted that the ratio in the case of Randhir Singh (supra) has been reiterated by the Honble Apex Court in R.D. Gupta v. Lt. Governor, Delhi Administration, (AIR 1987 SC 2086), in which case it has been held that where all things are equal, i.e., where all relevant considerations are the same, persons holding identical posts may not be treated differently in the matter of their pay, merely because they belong to different departments. The applicants had further cited the case of Sita Devi v. State of Haryana, (AIR 1996 SCW 3466) claiming protection of the doctrine of equal pay for equal work, and had cited the case of Gopika Ranjan Choudhary v. Union of India, (AIR 1990 SC 1212) to cite that there cannot be discrimination between Headquarters and other units. The applicants had pointed out the ratio laid down by the Honble Apex Court in Union of India v. Debashis Kar, (1995) Supp. 3 SCC 528, where the Draftsmen employed in the Ordinance Factories and the Army Based Workshop of EME have been granted parity of pay with Draftsmen Grade-II in the Central Public Works Department. It was further submitted that in State of Mysore v. B. Basuvalingappa, (AIR 1987 SC 411), the Honble Apex Court had stated that once pay scales in the same cadre had been fixed initially, parity should be maintained at the time of their revision also.
23. On the point of judicial review in matters pertaining to pay scales, the applicants have cited the judgment of this Tribunal dated 16.05.2008 in O.A. No. 1157/2007 F.C. Bazaria v. Union of India, wherein, by invoking the doctrine of equal pay for equal work, it was held that when two incumbents forming the same class perform same duties and functions, merely because they are holding identical designations in different Ministries/Departments, cannot be a valid ground or an intelligible differentia to be treated unequal for grant of pay scales.
24. The applicants had thereafter reiterated all the facts (as already discussed in detail above from their OA) regarding historical parity till the recommendations of the VIth CPC were implemented by the respondents. To overcome this hurdle, they had sought shelter behind the Ministry of Defence, Department of Defence Production Order No.PC.II.9(30)/68/IV/D(Fy) dated 27.09.1975, which related to the extension of Civil Services Rules of the Armed Forces Headquarters to the Directorate General, Ordnance Factories, Headquarters Staff. The applicants had pointed out that that the respondents have intentionally deleted certain portions in the CDS (RP) Rules, 2008, knowing fully well that the pre-revised pay scale of Rs.5500-9000 was applicable only in Secretarial offices, and has been mentioned only in para 3.1.9 of the VIth CPC recommendations, which was upgraded further even to Rs.6500-10500 even prior to the release of the VIth CPC Report.
25. The applicants had reiterated their stand that applying para 3.1.14 of the VIth CPC recommendations to the respondents organization only on account of it being a non-Secretarial Organization, would lead to disturbing the historical parity enjoyed by them with the CSSS and the AFHQCS, and had again prayed for the OA to be allowed.
26. During hearing of the case on 09.01.2012, the learned counsel for the applicants submitted that he would like to file relevant documents in support of the contentions of the applicants that the office of the D.G. (Ordnance Board) has been given the status equivalent to a Headquarters Office, and in view of that position the employees of that office are entitled to the same pay scale, as applicable to the employees of the CSS. He was permitted to file an additional-affidavit in this regard, which additional-affidavit was later filed on 27.01.2012. Through this additional-affidavit the applicants have brought on record Annexure A-17 letter dated 09.01.1979, through which the re-organization of the Ordnance Factories and the creation of an Ordnance Factory Board (OFB), with the Director General of Ordnance Factories as the Chairman of the Board, had been ordered, along with other related instructions issued in this regard. Consequential instructions were also issued regarding the re-organization of the entire Ordnance Factory Organization through letter dated 09.02.1979, which also was brought on record by the applicants, through which the implementation of the report of the Committee to enquire into the facts regarding working of the Ordnance Factories had been noted, and Grouping of Ordnance Factories into three divisions, according to the nature of their production, had been ordered, and rules for the conduct of the business of the OFB had been prescribed.
27. The additional-affidavit had also brought on record Annexure A-18, regarding instructions of the Ministry of Defence concerning grant of Headquarters allowance admissible to officers of Organized Group A Services of the respondent No.3 organization, who are posted in the Headquarters of the OFB at Kolkata, and had also brought on record the sanction dated 29.11.2008 issued, sanctioning the Headquarters Allowance to 76 officers of the OFB at Kolkata, eight officers of the Ordnance Factories at New Delhi, 05 officers of the Ordnance Factories at Kanpur, and 02 officers of the AV Headquarters at Avadi. Through this, the applicants had tried to prove that since they are also working in the Headquarters, of OFB at Kolkata, and as a result the distinction made by the respondents in the impugned order, stating that they were not serving in the Headquarters, was not correct. Through Annexure A-19 the applicants had also brought on record the Chapter-7.10.01 of the recommendations of the VIth CPC. However, it is seen that at the end of para-7.10.04 of its Report the VIth CPC had observed as follows:
The Commission has considered the issue of parity between headquarters organizations and field offices of the Central Government in Chpater-3.1 of the Report. The recommendations contained therein shall also apply in Ministry of Defence.
28. Also, in respect of the Accounts Staff, in para-7.10.12, the VIth CPC had recommended as follows:
Parity with CSS has been sought between various posts of accounts staff under the office of Controller General of Defence Accounts (CGDA). The Accounts Staff under CGDA forms an organized Accounts cadre. The Commission has made recommendations for the organized Accounts cadre in Chapter 7.56relating to Indian Audit and Accounts Department. The recommendations made therein shall extend to all the organized Accounts cadres, including that in CGDA.
29. In para-7.10.22 in respect of AFHQ Civil Service and AFHQ Stenographers Service, the VIth CPC had recommended as follows:
AFHQ Civil Services and AFHQ Stenographers Service have demanded parity with CSSS and CSS. Since the Commission has recommended parity between posts in headquarters and field offices, it is only justified that such parity also exists between similarly placed posts in different headquarter organizations. The Commission, accordingly, recommends that parity should be maintained between the posts at the level of Assistant and Section Officer in these services.
30. It was, therefore, prayed by the applicants through this additional-affidavit that since in Chapter-III of its recommendations, the VIth CPC had recommended maintaining parity between the field officers (also called subordinate officers) at least upto the level of Assistants, and this has also been so affirmed by the respondents in the impugned order, their prayers in this OA may be allowed.
31. The respondents filed a reply to the additional-affidavit on 03.04.2012, reiterating their stand that Courts had time and again propounded the law that it would not be proper for the Courts to tinker with the recommendations of the Pay Commissions, since any such directions which are not in consonance with the recommendations of the Pay Commission would have a cascading effect on the pay scales to be granted to the other feeder/higher positions.
32. It was further denied that the OFB is a Headquarters office, and it was submitted that in fact it is clear and categorical that the OFB is an attached office of the Ministry of Defence, and that the VIth CPC had in such cases categorically recommended that such Headquarters organizations outside the Secretariat formation shall be placed under category-III. It was, therefore, prayed that since no new points have been brought about on record by the applicants through the Additional Affidavit, the OA may be dismissed, as being devoid of merit.
33. Heard. The case was argued vehemently by both the sides, and brief written submissions on behalf of the applicants were also submitted, apart from the copies of the relevant case-laws.
34. The applicants had filed a copy of the judgment dated 16.05.2011 in OA No. 2102/2010 with OA No.2114/10, along with the connected MAs. It would be relevant here to reproduce the conclusion of the above order:
18. It is noted that the Chapter 3.1 of the 6th CPC recommendation dealt very comprehensively the issues brought before it on the subject of disparity between Secretariat and Field Offices. The role and responsibilities of the Secretariat and Field Officers have been identified to be different. Parity of certain posts, disparity in other posts, anomaly in pay scale have been analysed in Para 3.1.7 and the 6th CPC has given its recommendations in Para 3.1.8 to 3.1.15. para 3.1.9 provides the pay structure of LDC to Director levels in the Secretariat in Pay bands and grade pay whereas Para 3.1.14 gives the pay structure for non-Secretariat Organisation. On our direction, the Respondents have provided a copy of Swamys Compilation of 6th CPC Report Part I pages 141 to 147 and Swamys Manual on Office Procedure 2006 and 2009. In the definition Chapter at entry 53, Secretariat Offices are defined as those which are responsible for formulation of the policies of the Government and also for the execution and review of those policies. As per this definition, the Organisations where the Applicants are working cannot be termed as Secretariat. On the contrary, the Non-Secretariat Organisations where the Applicants are working are either attached offices or subordinate offices. Definition of the attached offices are generally responsible for providing executive direction required in the implementation of the policies laid down by the department to which they are attached. They also serve as repository of technical information and advise the department on technical aspects of question dealt with by them. The meaning of subordinate offices signifies that these function as field establishments or as agencies responsible for the detailed execution of the policies of Government. They function under the direction of an attached office or directly under a department. Having examined the definitional aspects and the averments made by the Respondents, we are of the opinion that there is exist distinction in the works, functions and responsibilities between the Secretariat and non-Secretariat Organisation. If there is functional dissimilarities, there is bound to be financial disparity in pay and allowances.
19. Considering the totality of the facts and circumstances of the case in both OAs, we find that Applicants belong to Non-Secretariat Organisation. We also come to the considered conclusion that the distinction brought in the year 2003 for CSS/CSSS/AFHQ is not applicable to the Applicants. All the Applicants would be covered by the pay scale prescribed in Para 3.1.14 of the 6th CPC re commendations and accepted by the Government.
20. Having considered the totality of facts and circumstances of the case and guided by the well settled position in law in the subject of pay parity, we come to the considered conclusion that the Respondents have well defended their case and the Applicants do not have a case in their support. Resultantly, we uphold the order dated 3.08.2009 passed by the Respondents. The Applicants are not entitled to (a) the pay scale of `7500-1200 w.e.f. 1.1.1996 notionally and w.e.f. 3.10.2003 the actual benefits, (b) non functional pay scale of `8000-275-13500 (pre-revised) and (c) the corresponding pay bands and Grade pay under the 6th CPC.
21. Thus, the Original Application being bereft of merits is dismissed, leaving the parties to bear their respective costs. Registry is directed to keep a copy of this order in each of the OAs.
35. In their written submissions, the applicants denied the applicability of this judgment to their case, and contended that there are distinctive features inasmuch as the present case had been filed by the Assistants and the PAs, whereas the judgment cited above dealt with the Assistant Section Officers, and the VIth CPC recommendations had already made a distinct classification between the two posts in para 3.1.7 and 3.1.8 of its Report, inasmuch as the Assistants Grade is a feeder post, and the grade of Assistant Section Officers is a promotional post. In fact, they relied upon the recommendations of the VIth CPC Report in para 3.1.3 that parity has to be maintained between the personnel employed in the Secretariat and Field Offices, and such parity had to be absolute till the grade of Assistants. It was submitted that these aspects were not dealt with in the above cited judgment dated 16.05.2011, as it did not deal with the aspect of parity being maintained up to the level of Assistants. It was further submitted that the respondents have made contradictory statements in their submissions, and when the Coordinate Bench has noted in Para-7 of the judgment that parity in pay beyond the grade of Assistants may not be possible, it has to be read to have held that parity till the level of Assistants has to be maintained. It was further submitted that though in Para-10 of the above cited judgment dated 16.05.2011, the claim of parity of pay has been equated to claim for equal pay for equal work for fixation of pay, since in the instant case also the applicants have been demanding only the historical parity being maintained, which concept has been recognized by the VIth CPC also, the judgment, in question, is not applicable to the instant case.
36. It was further submitted that the above cited judgment had proceeded on the basis of the office of the Director General Ordnance Factories being an attached office or subordinate office, but this consideration cannot be extended to the present case, as in para 3.1.6 read with para 7.10.22 of the VIth CPC Report, maintenance of parity at the level of Assistants in all non-participating Ministries and Organizations had been stressed, and hence question of OFB being an attached or subordinate office does not arise.
37. In their written submissions, the applicants had also tried to distinguish their case from Paragraphs 15 to 18 of the above cited judgment dated 16.05.2011, and had claimed that since the Assistant Section Officers is a Group B Gazetted post, which is a supervisory post, their cases could have been treated on a footing different than that of the applicants, who have always enjoyed parity with CSS upto September 2006.
38. For deciding the main issue in this O.A., , it is essential for us to reproduce the recommendations made by the VIth CPC in Para 3.1.9, especially the Note below the Table provided in that Paragraph, and the Paragraph 3.1.14, including the two Notes below the Table provided in that Paragraph, which are as follows:-
3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in all Secretariat Services(including CSS as well as non participating ministries/departments/organizations) to Rs.7500-12000 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS, the Section Officers in other Secretariat 161 Offices, which have always had an established parity with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group-B corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 on completion of four years service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified that the pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relativities which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs.4800 in pay band PB-2 is, otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis-mutandis to post of Private Secretary/equivalent in these services as well. The structure of posts in Secretariat Offices would now be as under:-
Post Pre revised pay scale Corresponding revised pay band and grade pay LDC Rs.3050-4590 PB-1 of Rs.4860-20200 along with grade pay of Rs.1900 UDC Rs.4000-6000 PB-1 of Rs.4860-20200 along with grade pay of Rs.2400 Assistant Rs.6500-10500 PB-2 of Rs.8700-34800 along with grade pay of Rs.4200 Section Officer Rs.7500-12000 Rs.8000-13500* (on completion of four years) PB-2 of Rs.8700-34800 along with grade pay of Rs.4800.
PB-2 of Rs.8700-34800 along with grade pay of Rs.5400* (on completion of four years) Under Secretary Rs.10000-15200 PB-3 of Rs.15600-39100 along with grade pay of Rs.6100 Deputy Secretary Rs.12000-16500 PB-3 of Rs.15600-39100 along with grade pay of Rs.6600 Director Rs.14300-18300 PB-3 of Rs.15600-39100 along with grade pay of Rs.7600 * This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organisations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. would therefore be covered. .. .. .. .. 3.1.14 In accordance with the principle established in the earlier paragraphs, parity between Field and Secretariat Offices is recommended. This will involve merger of few grades. In the Stenographers cadre, the posts of Stenographers Grade II and Grade I in the existing scales of Rs.4500-7000/Rs, 5000-8000 andRs.5500-9000 will, therefore, stand merged and be placed in the higher pay scale of Rs.6500-10500. In the case of ministerial post in non- Secretariat Offices, the posts of Head Clerks, Assistants, Office Superintendent and Administrative Officers Grade III in the respective pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500- 10500 will stand merged. The existing and revised structure in Field Organization will, therefore, be as follows:-
(in Rs.) Designation Present pay scale Recommended pay scale Corresponding Pay Band & Grade Pay Pay band Grade Pay LDC 3050-4590 3050-4590 PB-1 1900 UDC 4000-6000 4000-6000 PB-1 2400 Head Clerk/Assistants/ Steno Grade II/equivalent 4500-7000/ 5000-8000 Office Superintendent/ Steno Grade I/equivalent 5500-9000 Superintendent/ Asst. Admn.
Officer/ Private Secretary/ equivalent 6500-10500 Administrative Officer Grade II /Sr. Private Secretary/equ. 7500-12000 7500-12000 entry grade for fresh recruits) 8000-13500 (on completion of four years) PB-2 4800 (5400 after 4 years) Administrative Officer Grade I 10000-15200 10000-15200 PB-2 6100 Note 1 The posts in the intermediate scale of Rs.7450-11500, wherever existing, will be extended the corresponding replacement pay band and grade pay.
Note 2 The existing Administrative Officer Grade II /Sr. Private Secretary/equivalent in the scale of Rs.7500-12000 will, however, be placed in the corresponding replacement pay band and grade pay till the time they become eligible to be placed in the scale of Rs.8000-13500 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.5400. (Emphasis supplied)
39. We have given our anxious consideration to the facts of this case. It is clear that in no case can an independent organization like the Ordinance Factory Board, which has the status of an attached office of the Ministry of Defence, and has its own separate structure of governance through a Board, be equated to the Secretariat Services of the Ministry of Defence or any other Ministry of the Union of India whatsoever.
40. The CSS and the CSCS are two different organized services within the Government of India, in which the CSCS has 33 different cadres in each of the Ministries of the Union of India while the CSS has a single cadre from the level of Assistants Grade upwards, but it does not have an intermediate Grade/Seniority level like that of the Assistant Section Officers, as one exists in the OFB, which is not there in the CSS, and Assistants of CSS are having a direct channel/avenue of promotion to the posts of Section Officers, unlike that in the OFB. Also, the CSCS does not constitute the only source of recruitment to the entry level cadre of Assistants in CSS, since direct recruitment of Assistants is also undertaken, which is an entirely different structure than in the OFB. The promotions within CSCS from LDC level to UDC level are also based upon the Limited Departmental Competitive Examination (LDCE, in short) conducted by the Staff Selection Commission (SSC, in short) for 25% of the UDCs vacancies. This LDCE conducted by SSC covers the following services, but the LDCs of OFB are not eligible to appear at this LDCE:-
Railway Board Secretariat Clerical Services (RBSCS), Department of Tourism (Headquarters Estt), Armed Forces Headquarters Clerical Services (AFHQCS), Central Vigilance Commission Clerical Services (C.V.C.C.S) and Election Commission of India Clerical Service (ECICS).
41. The promoted UDCs of CSCS then get an opportunity for filling up the promotional quota in the Assistants grade of CSS, while the separate examination for direct recruitment to Assistants Grade of CSS is still being conducted for certain percentage of the Assistants posts. This is not so in the case of OFB, as the Assistants level in OFB is filled up entirely on the basis of promotions from the UDCs of OFB, and there is no direct open market recruitment for the Assistants level in the OFB. Thus there is no comparison between the two.
42. It is, therefore, quite clear that in the respondent No.3 organization the methods of recruitment or movement of personnel on promotion from the level equivalent to LDC, to UDC level, and to the level of Assistants thereafter, are entirely different, and the time periods of residency prescribed for the promotions from the level of LDCs to that of UDCs, and then to the Assistants level above them in the O.F.B. have been prescribed on a totally different basis in the respondents organization, than in the Ministries/Departments of the Union of India in the case of CSCS and CSS. It has been submitted by the applicants themselves that in the OFB the eligibility criteria for promotion to Assistants level from the level of UDCs is only 5 years service, which is not the case even in the case of promotions from LDCs to UDCs in CSCS, and for the promotions from UDCs level to the Assistants entry level Grade of CSS. In the CSCS, 5 years continuous service requirement is only for the speeded or accelerated promotion of LDCs to the UDCs Grade through LDCE, but for their regular promotion on the basis of seniority-cum-merit, the residency period as prescribed for LDCs of CSCS is 8 years, which is not so in the case of O.F.B. Therefore, it is clear that the employees of OFB are already enjoying the benefit of faster promotions than the employees of the Secretariat of Union of India in the CSCS, and for the entry from CSCS to the CSS.
42. It is, therefore, clear that the applicants herein cannot, in any manner, claim parity with the CSS, and with the CSCS, and with the other services that have been mentioned in the Note below para 3.1.9 by the VIth CPC in its recommendations, as reproduced in para 38/above, which services we have mentioned at the end of para 40/above also.
43. On a closer reading of para-3.1.14 of the VIth CPC recommendations, as reproduced in para 38/above, it becomes clear that the respondents have rightly applied the recommendations of the VIth CPC as contained in this paragraph 3.1.14 to the employees of respondent No.3 organization.
44. Lastly, we have to deal with the aspect of historical parity. Maintaining historical parity of pay scales in Government service is sometimes possible, and sometimes it is not possible. The number of pay scales prevalent in the Union of India have kept on decreasing from thousands at the time of the Ist CPC to IInd CPC, from the IInd CPC to the IIIrd CPC, from the IIIrd CPC to the IVth CPC, from the IVth CPC to the Vth CPC, and from the VIth CPC onwards, the concept of pay scales itself has been abolished altogether, and only certain Pay Bands have been introduced, with different levels of Grade Pay, in order to differentiate among the employees on the basis of the seniority accrued by them in the relevant Pay Band, till their substantive promotion to the next higher Pay Band. In this whole process of gradual reduction of the total number of prevalent pay scales from thousands as they prevailed in the early 1950s to 01.01.1996, when at the time of the last Vth CPC, the pay scales were drastically reduced, and were grouped only into twenty & odd pay scales, there have been many cases of historical parity of pay scales having been lost by many personnel in different organizations and wings of the Union of India.
45. However, as has been held by the Court Apex Court in the cases of P.U. Joshi & Ors. vs. Accountant General, Hyderabad & Ors. with Union of India and Ors. vs. Basudeba Dora and Others (2003) 2 SCC 632; S. P. SHIVPRASAD PIPAL vs. UNION OF INDIA AND OTHERS 1998 (4) SCC 598; & ANIL KUMAR VITTHAL SHETE & ORS vs. STATE OF MAHARASHTRA & ANR (2006) 12 SCC 148: AIR 2006 SC 2018, and in the case law as cited by the respondents in Paragraphs 18 & 19 above, the State can change the cadre structure and the Recruitment Rules in the case of administrative exigencies. In this context, we may refer to the findings of the Honble Apex Court in Para-10 of P.U. Joshi & Ors with Union of India and Ors. vs. Basudeba Dora and Others (supra) in which the Honble Apex Court had stated as follows:-
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service.
46. Similarly in the case of S. P. SHIVPRASAD PIPAL (supra), the Honble Apex Court had in Paragraphs 14 to 19 held as follows:-
14. The Cadre Review Committee after examining the kinds of duties discharged by these officers decided that since they all worked in the area of labour welfare, it would be desirable that they could widen their experience. This would be possible if the cadres were integrated and the posts were made interchangeable so that the members of the cadre could get a more varied experience in different areas of labour welfare, thus making for a better equipped cadre. Therefore, although the exact nature of work done by the three cadres was different, it would be difficult to say that one cadre was superior or inferior to the other cadre or service.
15. A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres.
16. The appellant, however, contends that as a result of the merger his promotional chances have been very adversely affected because his position in the seniority list has gone down. Rule 9 of the Central Labour Service Rules, 1987 under which the merger is effected, lays down the Rules of Seniority. It provides that the inter se seniority of the officers appointed to the various grades mentioned in Schedule I at the initial constitution stage of the service shall be determined according to the length of regular continuous service in the grade subject to maintenance in the respective grade of inter se seniority of officers recruited in their respective original cadres. The proviso to this Rule prescribes that although Assistant Labour Commissioner (Central), Labour Officer and Assistant Welfare Commissioner shall be equated, all Assistant Labour Commissioners (Central) holding such posts on or before 31st of December, 1972 shall be en block senior to Labour Officers and (2) senior Labour Officers and Regional Labour Commissioners shall be equated. But all Regional Labour Commissioners holding such posts on or before the 2nd of March, 1980 shall be en block senior to the senior Labour Officers.
17. Explaining the proviso the respondents have said that before 31st of December, 1972 Assistant Labour Commissioners were in a higher pay scale than Labour Officers. The parity between their pay scales came about only from January 1973. That is why to preserve their inter se position, Assistant Labour Commissioners appointed prior to 31st of December, 1972 have been placed above Labour Officers. Similarly, Regional Labour Commissioners drew a higher pay scales than senior Labour Officers prior to 1980. The parity has come about in 1980 and hence Regional Labour Commissioners holding such posts on or before 2nd of March, 1980 have been placed above senior Labour Officers.
18. The seniority Rules have thus been carefully framed taking all relevant factors into consideration. The respondents have also pointed out that as a matter of fact, by reason of the merger, the appellant has not, in fact, suffered any prejudice and he has also received promotions.
19. However, it is possible that by reason of such a merger, the chance of promotion of some of the employees may be adversely affected, or some others may benefit in consequence. But this cannot be a ground for setting aside the merger which is essentially a policy decision. This Court in Union of India v. S. L. Dutta (AIR 1991 SC 363) (supra) examined this contention. In S. L. Dutta's case (supra) a change in the promotional policy was challenged on the ground that as a result, service conditions of the respondent were adversely affected since his chances of promotion were reduced. Relying upon the decision in the State of Maharashtra v. Chandrakant Anant Kulkarni (AIR 1981 SC 1990) (supra) this Court held that a mere chance of promotion was not a condition of service and the fact that there was a reduction in the chance of promotion would not amount to a change in the conditions of service.
47. Further, in the case of ANIL KUMAR VITTHAL SHETE & ORS (supra), the Honble Apex Court has held as follows:-
30. In S.P. Shivprasad Pipal v. Union of India & Ors., (1998) 4 SCC 598, three cadres in labour service were merged by issuing a notification. It was contended by the appellant that different cadres could not have been merged inasmuch as they had different qualifications, functions, duties and powers and by merging those cadres, unequals had been treated as equals which was not permissible. It was also contended that by reason of merger, chances of promotion of the appellant stood diminished. The action was thus violative of Articles 14 and 16 of the Constitution.
31. The Court, however, negatived the contention holding that it was open to the State to merge different cadres. Following Chandrakant Kulkarni, the Court observed that, when different cadres are merged, the principles laid down in that decision had to be complied with. The Court reiterated that it was not open to the judiciary to consider whether the equation of posts made by the Government was right or wrong. It was a matter exclusively within the province of the Government. Perhaps the only question the Court could enquire into was as to whether the principles laid down in Chandrakant Kulkarni had been kept in mind and properly applied.
32. Dealing with the contention that as a result of merger of cadre, promotional chances of the petitioner had been adversely affected because his position in the seniority list had gone down, the Court stated that the seniority rules had been carefully framed and appellant had not suffered prejudice. It, however, proceeded to state that by reason of such a merger, chances of promotion of some of the employees may be adversely affected or some others may be benefitted in consequence. But that cannot be a ground for setting aside the merger which is essentially a policy decision. It is well established that 'chances of promotion' is not a 'condition of service' and reduction of chances of promotion would not amount to 'change in condition of service'.
33. From the above decisions, it is clear that it is always open to an employer to adopt a policy for fixing service conditions of his employees. Such policy, however, must be in consonance with the Constitution and should not be arbitrary, unreasonable or otherwise objectionable. When several cadres are sought to be unified in few cadres, e.g. three cadres in the instant case, it is natural that all Judicial Officers have to be placed in one or the other cadre. The said fact itself cannot make the decision vulnerable. The High Court, in our opinion, considered the question in its proper perspective and while creating three cadres and placing Judicial Officers in one of the cadres, took into account the relevant principles.
48. In this connection we may cite the Honble Apex Court decision in `State of Haryana & Anr. v. Haryana Civil Secretariat Personal Staff Association JT 2002 (5) SC 189 in which in para-9 of the judgment, the Honble Apex Court had cited with approval its earlier judgment in the case of Secretary, Finance Department & Ors. v. West Bengal Registration Service Association & Ors. JT 1992 (2) SC 27 by stating as follows:-
9. This Court in the case of Secretary, Finance Department & Ors. v. West Bengal Registration Service Association & Ors., JT 1992 2 SC 27 : 1993 SUPP1 SCC 153 dealing with the question of equation of posts and equation of salaries of government employees, made the following observations: "We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the pay commissions, etc. But that is not to say that the court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalization of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasize that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial secretary who had strongly recommended a substantial hike in the salary of the sub-registrars to the second (state) pay commission found it difficult to concede the demand made by the registration service before him in his capacity as the chairman of the third (state) pay commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and court's interference Is absolutely necessary to undo the injustice.
(Emphasis supplied).
49. Here in the instant case, when the above prescribed factors are examined, we find that the method of recruitment of the employees concerned in the OFB, the organization of the applicants, is different than in the case of CSS and other related services, the hierarchy in the service in the given cadre is also very different, inasmuch as some additional intermediate level promotional posts have been provided for in the O.F.B., which are not available in the CSCS or CSS, with which parity has been sought by the applicants, because of which the residency periods and avenues of promotions in the CSCS and CSS are also different from that as available in the respondent-organization No.3 O.F.B, the nature of duties and responsibilities are also obviously different, the horizontal and vertical relativity with similar jobs cannot also be proved beyond a certain level, and, therefore, out of ten tests prescribed by the Honble Apex Court, the claim of the applicants for parity of pay scales with CSS and other cited services does not succeed when we apply most of these tests, and, therefore, it appears that the claimed equality does not lie. We are also in respectful agreement with the observations of the Honble Apex Court in the above cited case that there can be no doubt that equation of posts and equation of salaries is a complex matter, which is best left to an expert body, unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post, and Court's interference is absolutely necessary to undo the injustice. In the instant case, we do not consider that we can examine the comparison of the quantum of work in the Respondent No.3 Organization O.F.B., and in the Secretariat services, better than the examination which was done by the VIth CPC, and, therefore, no interference from this Tribunal is called for in the recommendations of the VIth CPC.
50. We have also examined all the case laws as cited by the respondents, and by the learned counsel for the applicants, in detail. Although we are not discussing the salient points and ratio emerging out of those cases here, but we find that in none of those cases it has been clearly held that this Tribunal would be bound to provide relief only by a claim of historical parity, when an expert body like the Pay Commission has had an occasion to examine threadbare in detail the rival claims and contentions, and has arrived at conclusions, and has divided its recommendations into two separate Paragraphs 3.1.9 and 3.1.14 of its recommendations.
51. Therefore, it is held that the respondent - Union of India have correctly decided to follow the recommendations of the VIth CPC, as contained in Para-3.1.14, and applied that specific recommendation in the case of the applicants, and the applicants cannot claim any relief merely on the basis of a claim of historical parity, which may have been granted to them by the Courts and this Tribunal from time to time, in view of the prayers made, and the circumstances prevailing at that point of time.
52. In the result, we find that the Ordnance Factory Board being an attached office of the Union of India, the applicants are not entitled to the benefit of Paragraph 3.1.9 of the recommendations of the VIth CPC, and the OA has no merit, and is, therefore, rejected, but there shall be no order as to costs.
(Sudhir Kumar) (G. George Paracken) Member (A) Member (J) cc.