Karnataka High Court
Union Of India vs Sri Dodda Narasaiah S/O.Sri Narasaiah on 26 September, 2012
Bench: N.Kumar, H.S.Kempanna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF SEPTEMBER, 2012
PRESENT
THE HON'BLE MR. JUSTICE N KUMAR
AND
THE HON'BLE MR. JUSTICE H S KEMPANNA
Writ Petition No.34296 of 2010 (S-CAT)
BETWEEN:
1. UNION OF INDIA
MINISTRY OF TEXTILES
UDYOG BHAVAN,
MAULANA AZAD ROAD,
NEW DELHI - 110 001
REP. BY ITS SECRETARY
2. THE CHIEF EXECUTIVE OFFICER
AND MEMBER - SECRETARY
CENTRAL SILK BOARD
CSB COMPLEX, 100 FT RING ROAD
BTM LAYOUT, MADIVALA,
BANGALORE - 560 068 ... PETITIONERS
[BY SRI N S PRASAD, ADV.]
AND:
SRI DODDA NARASAIAH
S/O SRI NARASAIAH
AGED ABOUT 52 YEARS
WORKING AS ASSISTANT DIRECTOR
(ECONOMICS), SILKWORM SEED
TECHNOLOGY LABORATORY,
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CENTRAL SILK BOARD,
CARMELARAM POST, KODATHI
BANGALORE - 560 035,
AND R/AT NO.319,
KRISHNA NILAYA,
KANNIKA NAGAR LAYOUT,
RAMASANDRA, SULIKERE POST
BANGALORE - 560 060 ... RESPONDENT
[BY SRI V S NAIK, ADV.]
THIS PETITION FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
ORDER OF CAT, BANGALORE, IN TA NO.461 OF 2008 DATED
19.03.2010 (ANNEXURE-A) AND ETC.,
THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, N. KUMAR, J., MADE THE FOLLOWING:-
ORDER
The Union of India has preferred this writ petition challenging the order of the Central Administrative Tribunal which has directed the respondents to extend the pay and allowances in the pay scale of Rs.8,000-13,500/- from 1.1.1996 and pay arrears within three months with interest at 9% per annum and cost of Rs.5,000/-.
2. For the purpose of convenience, parties are referred to as they are referred to in the application.
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3. The applicant was appointed as a 'Junior Economic Investigator' in the office of the second respondent in the year 1982. Eligibility criteria for being appointed to the said post was basic degree in B.Sc. The applicant was a holder of a degree in B.Sc. In the year 1989, he was promoted as 'Senior Economic Investigator'. In the year 1990, the post of Senior Economic Investigator, Senior Research Assistant [Statistics] and Statistical-cum-Costing Investigator came to be clubbed. Clubbing was a result of notification of recruitment rules by the first respondent on 1.2.1990. Prior to clubbing of these posts, they were all in the pay scale Rs.550-900/-. On clubbing the designation of all these three categories, it was revised as Statistician with pay scale of Rs.1640-2900/-. On 31.12.1993, a common seniority list was published and designation of the applicant was shown as Statistician. In the merged cadre, by a Memorandum dated 10.07.1999, the pay scales for the Central Silk Board 4 scientific personnel were revised. The pay scale of Rs.1640- 2900/- was revised to Rs.8000-13500/- in respect of those who have not completed ten years of service as on 1.1.1996. By another office memorandum dated 17.12.1999, one Sri. J C Mahanta, Senior Statistician was given pay scale of Rs.80000-13500/-. As the said benefit was not extended to the applicant who was similarly placed, he made a representation to the second respondent. The representation was not considered and he was not extended the said pay scale. Therefore, he was constrained to file a writ petition before this court in WP No.26961/2001. The said writ petition was allowed directing the respondents to consider the case of the applicant and others for extension of revised pay scales as was given to the erstwhile Senior Research Assistants. On receipt of copy of the order of the High Court, the second respondent issued a Memorandum dated 8.12.2006 extending the benefit of pay scales to the applicant and other similarly situated employees. 5 Accordingly, the applicant's pay scale was revised with effect from 1.1.1996 by an order dated 29.12.2006. However, he was granted monetary benefit only from 8.12.2006. He was not granted monetary benefit from 1.1.1996 the date on which his pay was fixed. Therefore, he submitted one more representation seeking for monetary benefit from 1.1.1996. The respondents issued an endorsement to the effect that he is not entitled to the said benefit. He is only entitled to notional pay fixation. Aggrieved by the said order, the applicant preferred an application before the Central Administrative Tribunal. The Tribunal after considering rival contentions taking note of the order passed by this court on earlier occasion, found fault with the respondents in not extending the benefits and therefore directed extension of benefits from 1.1.1996 with interest at 9% p.a. and also they were directed to pay cost of Rs.5,000/- for forcing the applicant to approach the Tribunal every time for 6 the relief. Aggrieved by the said order, the Union of India is before this court.
4. Learned counsel appearing for the Union of India assailing the impugned order, contended, in the first place, there was no direction issued by the High Court to extend the pay scale. However, with due respect to the order passed by the High Court, as one time measure, the applicant was extended the benefit of revised pay fixation. However, it was fixed notionally from 1.1.1996. The applicant has not worked from 1.1.1996 to 7.12.2006. He does not possess requisite educational qualification. He is not entitled to monetary benefit from the date of the order. The Tribunal was not justified in issuing directions and therefore he submits a case for interference is made out.
5. Per contra, learned counsel for the applicant submitted as it is clear from the material on record when three posts 7 were merged and they were designated as Statistician and was given a particular pay scale and when a higher pay scale is given to one category which was in existence prior to merger, the authorities were not justified in extending the same benefit to the applicant. The act of the petitioners is discriminatory in nature, contrary to the rules and therefore the Tribunal was justified in passing the impugned order. He submits no case for interference is made out.
6. We have gone through the order of the Tribunal, order of this court passed earlier which is the basis for extending the benefit of pay fixation to the applicant. The order of pay fixation and the order of the Tribunal makes it clear they proceeded on the assumption that in earlier proceedings, this court had directed the authorities to extend the pay scale to the applicant. Therefore the respondents as one time measure extended the said benefit. As the order of this court passed on earlier occasion stands, no direction was 8 given to extend the said benefit. The direction was to consider the case of the petitioner for extending the benefit. It is clear case of misreading of the order. The Apex Court had an occasion to consider the question which is the authority which is more competent to decide the pay fixation, equivalence of posts and how pay is to be fixed. In that context, the Apex Court has held in the case of STATE OF WEST BENGAL v. SUBHAS KUMAR CHATTERJEE AND OTHERS [2010] 11 SCC 694 at paragraph-14 as under:
14. This Court time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to acceptance or rejection, the courts cannot compel the State to accept the recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commission. (See Union of India v. Arun Jyoti 9 Kundu and State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.) It is no doubt true, the constitutional courts clothed with power of judicial review have jurisdiction and the aggrieved employees have remedy only if they are unjustly treated by arbitrary State action or inaction while fixing the pay scale for a given post.
Again at paragraph-21, they have held as under:
21. This Court on more than one occasion decried such practices adopted by the tribunals directing applications filed before them to be treated as representations before the executive authorities for their decision on merits. It is for the tribunals that are empowered to examine service disputes on merits. Such delegation of power apart from being illegal and unconstitutional amounts to avoidance of constitutional duties and functions to decide such disputes which are exclusively entrusted to them by law.
7. It is in this background, let us see what this court directed in the earlier writ petition No.26961/2001 which is disposed of on 11.09.2006. After setting out the case of the applicant and the arguments canvassed by learned counsel for the applicant and the arguments of learned counsel for 10 Union of India, it was of the view, petitioners have submitted their representations for redressal of their grievances. The same is not considered by the second respondent. The minimum that is expected of by an instrumentality of the State is to consider the representations and pass appropriate orders. The same has not been done in this case. Further, after referring to the merger of three posts into Statistician, it held if the merger of the three categories has to be withdrawn or premerger position has to be restored, employees likely to be affected adversely are to be given an opportunity of filing objections to the proposed change. Thereafter their objections are to be considered and appropriate orders are to be passed. Thereafter, it observed while it is always open to the employer to give special or additional increments to those of its employees who have acquired additional qualifications, whether the employees in the same cadre can be put on different pay- 11 scales, because of their possessing different qualifications, requires a serious examination.
8. Therefore, on all three points, this court did not express any opinion. It did not adjudicate the dispute. But, in paragraph-7 this is what has been said.
"7. In the result, I allow this petition by directing the respondents to consider the cases of the petitioners for extension of the revised pay-scales as was given to the erstwhile Senior Research Assistants. The respondents are directed to pass appropriate orders in the matter within three months from today after showing the meaningful consideration of the petitioners' case. Needless to observe that all the contentions are kept open."
9. Therefore, nothing was adjudicated in the said proceedings. Everything was left to be adjudicated by the authorities and they were to adjudicate within three months.
10. Now, let us see the order passed by the authorities after this direction by the High Court.
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11. After referring to the aforesaid Judgment of the High Court, in dealing with the case of the applicant, this is what has been said, "Similarly, two Officers with Post-Graduate qualification were working as Assistant Directors at the time of implementation of the pay package and since there was no pay scale change at Assistant Director level, no benefits are due to them. However, Shri Aditya Kuamr Palit, Shri P.N. Vasantha Rao, Shri Doddanarasaiah (Petitioner No.1), Shri T. Prakash, Ms. Madhulika Bhatnagar, Shri S Bhoopathy Raj, Shri Rajeev Kumar, Shri S Nanjunda Sastry and Shri Ashok Laxmanrao Deole being Post-Graduates, would become eligible if the 'Principle of Natural Justice" is applied and accordingly, this should be considered. Accordingly, it is ordered that all these 9 Officials may be granted the pay scale of Rs.6,500.00-10,500.00 w.e.f. 01.01.1996, and further they may be placed in the pay scale of Rs.8,000.00-13,500.00 as and when they have completed / they complete 10 years service in the pay scale of Rs.5,500.00-9,000.00 / 6,500.00- 10,500.00 as was given to the SRAs with Post- Graduate qualification.
The placement in the above pay scales will be for national fixation of pay and monetary benefits will accrue to them only from the date of issue of this Order."
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12. Therefore, it is clear they did not apply their mind and decide whether the applicant is eligible for the said pay scale. They proceeded on the assumption that as the applicant and others mentioned in the said paragraph being post graduates would become eligible if the principles of natural justice is applied and accordingly they should be considered. We fail to understand what is that principles of natural justice the authority has applied in deciding fixation of pay scale. All that the High Court said was to hear them and pass appropriate orders. Merely because they were heard, they will not be eligible. After hearing them, if the authorities are satisfied that they are eligible, then they are bound to extend the said benefit. It shows total lack of application of mind. However, applicant gets the benefit. His grievance was that pay was fixed from 1.1.1996 by an order dated 29.12.2006. However, he was granted monetary benefit only from 8.12.2006. He was not granted monetary benefit from 1.1.1996 the date on which his pay was fixed. 14 Therefore, he made a representation seeking for the said benefit. That representation was rejected as per Memorandum dated 22.8.2007 Annexure-K. It reads as under:
"MEMORANDUM Sub: Request for release of pay arrears by Shri Doddanarasaiah, Assistant Director (Eco.) - Reg.
With reference to his representation dated 16.04.2007 on the above subject, Shri Doddanarasaiah, Assistant Director (Eco.) is informed that his request for release of Pay arrears with effect from 01.01.1996 on par with SRAs has been examined. He is informed that as per the directions of the Hon'ble High Court of Karnataka, the Competent Authority has passed orders that 9 Economic staff having post graduate qualification be given the higher replacement scale of Rs.6,500 - 10,500 and they may be also placed in the pay scale of Rs.8,000 - 13,500 on completion of 10 years service in the cadre of Sr. Economic Investigator as a one time measure. This has been made clear by the Competent Authority in the speaking order issued vide Memorandum No.CSB-5(27)/95-ES (Law) dated 08.12.2006 and further indicating that the placement in the above Pay Scale will be for national fixation of Pay and Monetary benefits 15 will accrue to him only from the date of issue of the order i.e. w.e.f. 08.12.2006.
Shri Doddanarasaiah, is further informed that 9 Economic staff including him to whom the abovesaid benefit has been extended are not basically scientists. However, they have been given benefit of higher replacement scale of Rs.6,500 - 10,500 and placement in the pay scale of Rs.8,000 - 13,500 as a one time measure as per the directions of Hon'ble High Court and keeping in view the principle of natural justice as the Economic group and the Statistic group were in a common Pay Scale/Common Seniority at the time of granting these benefits to Statisticians with M.Sc. qualification and who had joined originally as SRA (Statistics).
Therefore, Shri Doddanarasaiah, AD (Eco.) is not eligible for any Pay Arrears from 01.01.1996 to 07.12.2006 as he has not officiated in the higher replacement scale or in the pay scale of Rs.8,000 --13,500. However, he may note that he has been given the benefit of notional fixation.
This issues with the approval of the
Competent Authority.
Sd/-
(G.K. UNNITHAN)
JOINT DIRECTOR (ADMN.)
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13. From the aforesaid order, it is clear they have given benefit to the applicant as a one time measure as per the directions of the Hon'ble High Court and keeping in view the principles of natural justice as Economics group and Statistics group were in common pay scale/common seniority at the time of granting these benefits to Statisticians with M.Sc. qualification and who had joined originally as SRA [Statistics]. They made it clear applicant is not eligible for any pay arrears as he has not officiated in the higher replacement scale or in the pay scale of Rs.8000- 13500/-. However, he was given benefit of notional fixation.
A reading of this order now makes it very clear the authorities have proceeded on an assumption that High Court has directed them to extend the benefit. Before extending the benefit, he should be heard, that is the principles of natural justice and therefore he was heard and order of the High Court was given effect to. When this endorsement was challenged before the Tribunal, the 17 Tribunal also seems to be under the impression question is whether the applicant is entitled to benefit of pay scale which is already decided by the High Court and there is nothing for the authorities to decide. This is clear from its observation in paragraph-13 of the order of the Tribunal dealing with High Court direction, reading as under:
"13. The other contention put forth by the respondents that the Hon'ble High Court of Karnataka has not given specific directions for release of arrears of pay. In fact, the direction of the Hon'ble High Court was to consider the case of the applicants for extension of revised pay scales as was given to erstwhile Senior Research Assistants. This clearly means that the Hon'ble High Court had directed the respondents to consider the case of the applicants in the same way as the case of Senior Research Assistants was considered for fixation of pay and allowances. From the order dated 8.12.2006 at Annexure-E it would appear that the competent authority has exhibited disregard to the directions of the Hon'ble High Court in as much as it was specifically mentioned in the said Order that the granting of pay scales from 1.1.1996 would be only for notional fixation of pay and monetary benefits will accrue to them only from the date of issue of the Order. As 18 rightly contended by the applicant, the above condition laid down in the order dated 8th December, 2006 exhibits invidious discrimination shown to the applicant. The respondents having accepted the decision of the Hon'ble High Court should have implemented it in true spirit and should not have interpolated their own misconception in the directions given by the Hon'ble High Court in the matter of considering the case."
14. Therefore, it is clear the tribunal is of the view that the High Court has issued direction and there is no option left to the authorities except to extend the benefit. It is clear case of misreading. After so recording, it proceeded to hold that the applicant is entitled to the benefit of arrears of pay and allowances in the pay scale of Rs.8000-13500/- along with simple interest at 9% p.a. for the amount that was due to the applicant from 8.12.2006 till the date of payment of the arrears and for making the applicant approach the Tribunal on more than one occasion, the respondents should pay Rs.5,000/- as cost.
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15. The question whether the applicant is entitled to the higher pay scale has to be decided by some authority before extending said benefit. From what is stated above in the earlier proceedings, the High Court did not adjudicate the said dispute. It directed the authorities to adjudicate the dispute. The authorities also did not adjudicate the dispute on the ground that it is already adjudicated by the High Court and when partial relief is given, when it was challenged before the Tribunal, the Tribunal also did not adjudicate the said question on the ground that already High Court has decided and it has gone further and extended full benefit. Therefore, adjudication of the dispute is a condition precedent for extending the benefit. That dispute is to be adjudicated not by the Tribunal or by this court, but as held by the Apex Court in the aforesaid Judgment of SUBHAS KUMAR CHATTERJEE, equation of posts and equation of salary is a matter which is best left to an Expert Body. Fixation of pay and determination of parity 20 among duties and responsibilities is a complex matter which is for the Executive to decide. If they adjudicate the dispute and in the process of adjudication, if a person is unjustly treated, by arbitrary state action or inaction while fixing pay scale for a given post, then judicial review is permissible of such Executive action.
16. Therefore, in our view, proper course to do is to set aside the order of the Tribunal, the endorsement issued by the authorities as well as the earlier order extending the benefit and direct the authorities to fix the pay scale of the applicant in accordance with law after giving him reasonable hearing so that if the applicant is unjustly treated by any arbitrary action of the authorities, said action could be reviewed by the Tribunal and thereafter by this court. Therefore, the order passed by the Tribunal ignoring these fundamental principles is certainly contrary to law and cannot be sustained. We are constrained to make this order 21 because reading the order of the authorities give an impression that out of fear of contempt proceedings, they have blindly extended the benefit without applying mind. The authorities acting within the four corners of law need not be afraid of courts. Only when they act contrary to law, ignoring the court orders, act contrary to court orders, they should be afraid. They cannot avoid performing their lawful duty by putting forth a plea of High Court direction. It is high time for the authorities to take proper legal advice if they are not able to understand the High Court order and by taking such legal assistance understand the High Court orders in its right perspective and not to misinterpret the orders and blame the courts but to understand the order and discharge their duties in a given case.
17. In that view of the matter, we pass the following order:
[a] Writ petition is allowed.22
[b] The impugned order passed by the Tribunal is hereby set aside.
[c] Memorandum at Annexure-E dated 8.12.2006 and Annexure-K dated 22.08.2007 issued by the Central Silk Board are hereby quashed.
[d] The authorities shall hear the applicant, receive any written submissions to be made by him, thereafter consider the case of the applicant for extending revised pay scales as was given to erstwhile Senior Research Assistants in accordance with law and pass appropriate orders within two months from the date of receipt of copy of this order.
[e] They shall not only decide the question of pay fixation but also decide the question from what date that pay is to be fixed, if any arrears is to be 23 paid, by express words without giving room for any ambiguity.
[f] Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE AN/-