Central Administrative Tribunal - Delhi
Shri M.S. Gusain vs Union Of India on 7 March, 2010
Central Administrative Tribunal
Principal Bench
OA No.2468/2010
New Delhi, this the 7th day of March, 2011
Honble Dr. Ramesh Chandra Panda, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
1. Shri M.S. Gusain,
S/o Late Shri B.S. Gosain,
R/o H.No.E-1452,
Netaji Nagar,
New Delhi.
2. Shri L.N. Ravi,
S/o Shri L.N. Sampath,
R/o H.No.S/III/283,
R.K. Puram,
New Delhi-110022.
3. Smt. Revathy Venkataraman,
W/o Shri B. Venkataraman,
R/o H.No.B-343 Kendriya Vihar,,
Sector-51,
Noida (UP).
4. Shri Mehar Chand,
S/o Late Shr Chattar Singh,
R/o H.No.J-885, Kali Bari Marg,
New Delhi.
5. Shri Ravinder Singh,
S/o Late Shri S. Kalyan Singh,
R/o H.No.14/134, Gita Colony,
Delhi-110031.
6. Smt. Shankari Basu,
W/o Shri Bhaskar Basu,
H.No.1090, Laxmi Bai Nagar,
New Delhi-110023.
7. Smt. Valsala Sasidharan,
W/o Shri Sasidharan Pillai,
R/o H.No.C-II/176, Lodhi Colony,
New Delhi-110003.
8. Shri O.P. Dhasmana,
S/o Late Shri Y.P. Dhasmana,
R/o H.No.IV/1425 Bhola Nath Nagar,
(Near Pela Mandir), Shahadara,
Delhi-110032.
9. Smt. Kamini,
W/o Late Shri G. Karthikeyan,
R/o H.N.F-2579, Netaji Nagar,
New Delhi-110023.
10. Shri Satish Kumar Sharma,
S/o Late Shri Fakir Chand Sharma,
R/o H.No.B-220, Krishan Kunj Gali,
North Ghonda,
Delhi-110053.
11. Shri P.J. James,
S/o late P.L. Jacob,
R/o H.No.658, B.K.S. Marg,
New Delhi-110001.
12. Shri Mukesh Dhir,
S/o Late Shri B.S. Dhir,
R/o H.No.DG-II/222C,
Vikas Puri,
New Delhi-110018.
13. Smt. Annama Varghese,
W/o Shri N.G. Varghese,
R/o H.No. 1301, Laxmibai Nagar,
New Delhi-110023.
14. Smt. Neera Suri,
W/o Late Shri V.K. Suri,
R/o H.No.10/161, Lodhi Colony,
New Delhi-110003.
Applicants
(By Advocate : Shri L.R.Khatana)
Versus
1. Union of India,
Through Secretary to the Govt. of India,
Ministry of Finance,
Department of Economic Affairs,
North Block,
New Delhi-110001.
2. Secretary to the Government of India,
Department of Expenditure,
Ministry of Finance,
North Block,
New Delhi-110001.
. Respondents
( By Advocate : Shri Nasir Ahmed)
: O R D E R :
Dr. Ramesh Chandra Panda, Member (A) Fourteen Applicants working as Accounts Clerk/ Auditors in the Aid Accounts and Audit Division (AAAD) in the pay scale of `4000-6000 and `4500-7000 respectively, have assailed (i) the order dated 13.7.2010 and (ii) the order dated 14.7.2009 (Annexure-A1 Colly) whereby their claims for pay parity in the pay scale of `4500-7000 for Accounts Clerk and that of Auditors play scale of `5500-9000 was rejected.
2. The brief facts of the case that led for the Applicants to approach the Tribunal for the third time would reveal that they filed OA No.1832/2009 which was decided by the majority view (There was difference of opinion between two Members) on 24.2.2009 in the following manner :-
2. The claim as above has been resisted. The difference of opinion as among members of the Bench, principally was about the manner in which the OA required to be disposed of. By order dated 11.07.2008, Honble Mr. Shanker Raju had set aside the impugned orders. The issue was remitted back to the Department of Expenditure to consider the claims as agitated in the application. A time limit had been prescribed for the concerned respondent to come up with follow up orders. Mr. Shailendra Pandey, Honble Member had, however, held that as the Sixth Central Pay Commissions report had already been submitted, the acceptance of which was expected at any time, no useful purpose would have been served in examining the lis as on the date. Honble Member was, therefore, of the view that the applicants were to wait for the acceptance of the recommendations and if they did not get the desired results, they were to have liberty to agitate their grievance before the appropriate forum. In view of the difference of opinion, a reference was made for placing the issue before the Honble Chairman for orders as below:
Since there is a difference of opinion between us in the final orders passed in OA No. 1832/2006, which are placed on record, the following reference is made for placing the same before the Honble Chairman, on administrative side, for appropriate orders:
One Member has opined that in view of the fact that expert bodies like Pay Commissions and the Ministry of Finance have a better idea of overall work contents and of the overall implications of grant of specific pay scales to various categories, and also in the context of a Coordinate Bench of this Tribunal (consisting of Honble Chairman and Vice Chairman (A)) having decided on a similar question (i.e. grant of higher pay scale to the Accounts staff) as posed in the present OA (i.e. grant of higher pay scale to the Accounts/Audit Staff) that:
no useful purpose would be served in examining the matter at this stage. Let the Sixth Central Pay Commissions report be issued and if the petitioners may not get the desired relief, they may file a fresh petition. it would be appropriate to await a decision on the Sixth Central Pay Commissions recommendations particularly when no prejudice is going to be caused to the applicants.
However, the other Member is of the view that as the grievance of the applicants relates back to 1.1.1996, Department of Expenditure should take a decision on the claim of the applicants within a period of three months without waiting for a decision on the 6th Central Pay Commissions recommendations.
3. The third member reference had come before me in the above background. I had opportunity to hear Shri .S.R. Krishna for the applicant and Mr. T.C. Gupta for the respondents. Mr. Gupta invited my attention to the recent affidavit filed dated 23.02.2009. It is pointed out that Paragraph 3.8.5 of the recommendations dealt with the parity of Accounts Staff belonging to unorganized cadre. Counsel points out that the present applicants could be considered as members coming within the above category, viz. unorganized cadre. The recommendation particularly clarified their position and no further orders are, therefore, called for. However, Mr. Krishna points out that the cardinal issue was entirely different and the recommendations of the Sixth Pay Commission had no role or reference to the issue. According to him, grievance of the applicants pertained to inequalities created well after the earlier Pay Commissions report, to wit, persons who were similarly situated like the applicants had later on granted benefit by Office Memorandum, referred to in the OA, resulting in advantages. The claim was, in fact, for extension of such benefits to the applicants. Therefore, the report of the 6th Pay Commission as such had no bearing on the issues and sustainability of such claim agitated in the OA. Hence, he submits that the view expressed by the Administrative Member could not have been possible to be accepted, as in effect the result will be to sideline the Tribunal. The Tribunal was not expected to express its helplessness when discrimination had been pleaded as between persons who were earlier similarly situated.
4. I find that the submission made by Mr. Krishna requires to be accepted. The grievance of the applicant could not have been considered as possible to be redressed by the Pay Commission report, unless it was specifically addressed to or special nature of attendant factors had been subject mater of consideration. In any case as we are not examining the report, an opinion as to whether the issue is dealt with or not does not come within the realms of our consideration in the present OA. The demand as put up appears to be far more fundamental in nature. The manner in which the issue has been tackled by the Judicial Member appears to be more acceptable. In the aforesaid circumstances, I concur with the views taken by Honble Mr. Shanker Raju. The directions as issued, according to me, should govern the situation.
5. In view of the circumstance that this is the majority view, appropriate follow up action is required to be taken, and with the utmost expedition. Ordered accordingly.
3. Pursuant to the above directions, the Respondents-Department of Economic Affairs passed an order dated 14.7.2009 in consultation with the Department of Expenditure wherein the claims of the Applicants were considered and rejected on 3 grounds. The Applicants in the meantime moved the Contempt Petition (CP No.398/2009) and the Tribunal closed the CP in view of the order dated 14.07.2009. On the same set of claims, the Applicants submitted one more Application ( OA No.722/2010) against the order dated 14.7.2009 and the Coordinated Bench of this Tribunal decided on 3.5.2010 which reads as follows :-
4. Learned counsel for the respondents submits that the respondents have not been able to place their case before the Tribunal as reply is yet to be filed but if the court so directs the respondents would examine the matter in accordance with law. We, therefore, feel that that this matter can be disposed of at the admission stage itself without going into merits by directing the respondents to reconsider the compliance to directions passed by the Tribunal in OA No.1832/2006 on 11.07.2009 and pass a reasoned and speaking order in accordance with law within a period of three months from the date of receipt of a certified copy of this order. No costs.
4. In compliance of the above orders of the Tribunal, the Respondent No.1 considered afresh the claims of the Applicants and rejected the same on 5 grounds. In the above backdrop, the Applicants are traveling to the Tribunal for 3rd time.
5. Shri L.R. Khatana, the learned counsel for the Applicant contended that the Accounts Clerk and Auditors in other cadres were granted upgraded pay scale of `4500-7000 and `5500-9000 on notional basis from 1.1.1996 and on actual basis with arrears with effect from 19.2.2003 and the Applicants being similarly situated, they are entitled for pay parity. He also submits that Junior Accounts Officers (JAO) in the AAAD and other cadres were granted pay scale upgradation but the Applicants were denied equal pay for equal work. He submits that the Accounts Cadre in AAAD and other Departments has the hierarchy viz Accounts Clerk is the feeder category for Auditor and the Auditor is the feeder category for JAO. He contends that if the pay parity has been granted to the JAOs in AAAD, how can the pay parity be denied for the feeder category (Auditor and Accounts Clerk). He drew analogy of Accounts Cadres of Border Security Force (BSF) in the Ministry of Home Affairs whose pay scales were upgraded as per the OM dated 28.2.2003. The Accounts Cadre in AAAD are similarly placed and are entitled to pay parity. He submits that the Accounts personnel of BSF were granted pay parity on the basis of Tribunal direction in the matter of J.R. Chobedar Versus Union of India & Ors. (OA No.208/1997) which was upheld by Honble Supreme Court of India. He has also referred to the judgment of Honble High Court of Delhi in the case of Union of India Versus R.K. Sharma and Others [WP(C) No.7231/2007] where the judgment of Honble Apex Court in case of State of Mizoram and Another Versus Mizoram Engineering Service Associations & Others [2004-6-SCC-281] to state that there is no distinction between organized and unorganized service in the Government. He submits that the Applicants case is fully covered by the above judgment. Shri Khatana submits that the decision of the Tribunal in OA No.1832/2009 is specific to the extent that the Applicants claims need to be considered without waiting for the 6th CPC recommendations and in that context the order dated 3.5.2006 rejecting the higher pay scale of the Applicants was rejected by the Tribunal. His submission is that it is not open to the Respondents to reopen the issue of Applicants functions and duties compared to their counterparts in BSF as this issue has already been decided by the Tribunal in OA No.1832/2009. Tribunal would now consider the pay parity only. He placed his reliance on the judgment of Honble Supreme Court in the case of A.P. SRTC and Others Versus G. Srinivas Reddy and Others [2006-3-SCC-674]. In view of his above contentions, Shri L.R. Khatana urges that the OA should be allowed and higher pay scale granted in terms of OM dated 28.2.2003.
6. Respondents, on receipt of the notice have filed their counter reply on 18.10.2010 and controverted the grounds taken in the OA. Shri Nasir Ahmed, learned Sr. Central Government counsel very vehemently opposed the contentions led by Shri L.R. Khatana. Shri Ahmed drew our attention to both impugned orders dated 14.7.2009 and 13.7.2010 to state that Respondents had considered the claim of the Applicants more than once and noted that they belonged to unorganized Accounts cadre whereas the higher pay scale was granted to the organized Accounts Cadre. He submits that the BSF Accounts Cadre was declared organized w.e.f. 1.4.1987 much before 1.1.1996. But the Accounts personnel in AAAD have not been declared as organized cadre. The Respondents, Shri Ahmed states, have maintained the distinction between organised and unorganized services not only for the accounts personnel but also personnel in other fields as well. The distinction is maintained and the grounds for the same have been clearly spelt out in the order dated 13.7.2010. Referring to the issue of JAOs getting higher pay scale on par with their counterparts in organized service, Shri Ahmed submits that the JAO in DEA have been working side by side with the Accounts posts encadred in the Civil Accounts Service who by virtue of being organized Accounts Services have been drawing higher pay scales and as such the analogy indicated by Shri Khatana is not admissible. He also contends that there is no authoritative decision on the issue of equal pay for equal work by the Tribunal on the other hand Tribunal has directed to consider the Applicants claims which Respondents have done in the order dated 13.7.2010.
7. The main issue for our consideration is whether the Applicants are entitled to get upgraded pay scales sanctioned in the OM dated 28.2.2003, as per which the Accounts Clerk and Auditors of the Organised Accounts Cadres pay scales have been fixed at `4500-7000 and `5500-9000 respectively. We may refer to the relevant OMs here. The OM dated 28.2.2003 (Annexure-A2) has upgraded the pay scales of the staff belonging to the organized Accounts Department on notional basis w.e.f. 1.1.1996 and on actual payment basis w.e.f. 19.2.2003. This OM extended the benefits to Assistant Audit Officer/Assistant Accounts Officer, Section Officer, Sr. Auditor/Sr. Accountant and Auditor/Accountant. The OM dated 4.3.2003 (Annexure-A3) issued clarification to the said OM to the extent that the post of JAO in Central Civil Accounts Service is equivalent to the Section Officer and as such the pay scale of Section Officer would apply to the JAOs. It is noted that the Government granted the higher pay scale to the organized Accounts service. There is no specific mention for such pay scale for the unorganized Accounts Service personnel.
8. Before we examine the grounds raised in the OA, it is apt for us to get guidance of well settled position in law in the matters of equal pay for equal work. Equal pay for equal work has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution, as held by Honble Supreme Court in Grih Kalyan Kendra Workers' Union v. Union of India, [(1991) 1 SCC 619], and also Union of India v. Dineshan K.K., [(2008) 1 SCC 586] and State of Kerala v. B. Renjith Kumar [(2008) 12 SCC 219]. However, as observed by the Honble Apex Court in State of Orissa v. Balaram Sahu [(2003) 1 SCC 250] equal pay would depend upon not only on the nature or volume of work but also on quality of work as regards reliability and responsibility as well and different pay scales may be prescribed on the basis of such reliability and responsibility. This ratio has also been reiterated by Honble Apex Court in State of Bihar v. Bihar State Plus-2 Lecturers Assns.,[(2008) 7 SCC 231]. In S.C. Chandra Versus State of Jharkhand [2007-8-SCC-279], the Honourable Supreme Court has exhaustibly dealt with the issue of pay parity and powers of the Courts and Tribunal to interfere in the matters of pay fixation and if so on what grounds. It is appropriate for us to take extract of the relevant paragraphs of the said judgment 15. The principle of equal pay for equal work was propounded by this Court in certain decisions in the 1980s, e.g. Dhirendra Chamoli and another vs. State of U.P. (1986) 1 SCC 637, Surinder Singh vs. Engineer-in-Chief, C.P.W.D. (1986) 1 SCC 639, Randhir Singh vs. Union of India (1982) 1 SCC 618 etc. This was done by applying Articles 14 and 39(d) of the Constitution. Thus, in Dhirendra Chamoli's case (supra) this Court granted to the casual, daily rated employees the same pay scale as regular employees.
16. It appears that subsequently it was realized that the application of the principle of equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. Government employees of one State were claiming parity with Government employees of another State.
17. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
18. Thus, in State of Haryana vs. Tilak Raj (2003) 6 SCC 123, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
19. In State of Haryana and others vs. Charanjit Singh and others (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.
20. In State of Haryana & another vs. Tilak Raj & others (2003) 6 SCC 123, the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:
"A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-`-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one.
'Equal pay for equal work' is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula". (Emphasis supplied)
21. In State of U.P. and others vs. Ministerial Karamchari Sangh, AIR 1998 SC 303, the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work.
22. In State of Haryana vs. Jasmer Singh and others AIR 1997 SC 1788, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the administrative authorities concerning the responsibilities, which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally was not open to interference by the court.
23. In Federation of All India Customs and Excise Stenographers (Recognized) and others vs. Union of India and others AIR 1988 SC 1291, this Court observed :
"In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula".
24. It may be mentioned that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408.
25. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book `The Spirit of Laws' still broadly holds the field in India today. Thus, in Asif Hameed vs. State of Jammu and Kashmir, [AIR 1989 SC 1899] a three Judge bench of this Court observed (vide paragraphs 17 to 19) :
"17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356 US 86 observed as under :
"All power is, in Madison's phrase, "of an encroaching nature". Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do."
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers." (Emphasis supplied)
26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).
27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal vs. Tarun K. Roy and others (2004) 1 SCC 347.
28. Similarly, in State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and others vs. Pradip Kumar Dey (2000) 8 SCC 580.
9. It is well established that (a) pay scale fixation is purely executive function and courts and Tribunals should not direct in fixing pay scales; (b) the principle of equal pay for equal work should not be applied unless there is a complete and wholesale identity between the two groups; and (c) the Pay Commission which goes into at great depth on the pay anomalies and the issues of pay parity demand vide examination from various angles with full facts on the issues, is the appropriate authority to decide such matters. In this context, we place our reliance on the judgment of Honble Supreme Court in the case of Union of India Versus P.V. Hariharan reported in 1997-3-SCC-568; State of Haryana and Another Versus Haryana Civil Secretariat Personal Staff Association [2002-6-SCC-72]; S.C. Chandra Versus State of Jharkhand [2007-8-SCC-279] and Union of India and others Versus Haranmay Sen and Others [2008-1-SCC-630].
10. In this background of trite law, we note that this Tribunal has limited scope to intervene in the matters of pay fixation. We may advert to what the counsel for the Applicants very labourously argued. It is stated that there is no distinction between organized and unorganized cadres; the higher post i.e. JAO having been equated with JAOs in organized service and granted higher pay scale, and the Applicants being similarly circumstanced with their counterparts in BSF, they deserve similar treatment of upgradation in the pay scales.
11. Let us consider the issue of whether there is distinction between organized cadre and un-organised cadres. Shri Khatana, learned counsel for the Applicant referred to the judgment of Honble High Court of Delhi in the matters of Union of India Versus Shri R.K. Sharma & Others [WP(C) No.7231/2007 pronounced on 29.5.2009] wherein judgment of Honble Apex Court in the case of State of Mizoram and Another Versus Mizoram Engineering Service Association and Others [2004-6-SCC-218] was cited to highlight that we see hardly any difference in organized and unorganized service so far as government service is concerned. In government service such a distinction does not appear to have any relevance. Civil Service is not trade unionism. We fail to appreciate what is sought to be conveyed by using the words organized service and unorganized service. Nothing has been pointed out in this behalf. The law laid in the above case is specifically for Mizoram State. In case of Union of India, there is clear distinction between the two types of cadres, specifically in respect of duties they discharge, eligibility conditions for promotion and levels of skill required to their specific job acquirements. The above observation of the Honble Apex Court being in respect of a state is distinguishable and not applicable for the present OA. In this context, 6th CPC in the para 3.8.5 of its recommendation indicated that the personnel belonging to organized accounts cadres have to compulsorily pass departmental examinations like SAS for promotion but such is not the case in the unorganized cadre. In case of the accounts personnel working outside the organized cadre (unorganized services), the 6th CPC did not agree to the parity between the organized and unorganized accounts cadres. It has been stated that the organized accounts cadres have higher skill requirement and they discharge different duties. Hence, in our considered opinion, as the expert body like CPC distinguishes the organized cadres from the unorganized on the grounds of (i) duties, (ii) skill requirement and (iii) pre-requisites for promotion, we would go by the said views of the 6th CPC.
12. We may refer to what the 6th CPC has considered and recommended which were accepted by the Government. The demand of the unorganized Accounts cadre for pay parity with the organized cadre has not been accepted by the 6th CPC and Government. Para 3.8.5 which deals with the issue reads as follows :-
The Accountants belonging to unorganized cadres have always sought parity with the posts in the organized accounts cadres. Personnel belonging to the organized accounts cadres not only have different duties but their skill requirement is also higher. The personnel belonging to organized accounts cadres have to compulsorily pass departmental examinations like SAS for promotion. Such is not the case for posts relating to accounts work outside the organized accounts cadres. It is, therefore, not possible to draw any comparison between the posts in organized accounts cadre and those outside it. The commission is, consequently, unable to concede any parity between various posts in organized and unorganized accounts cadres. Thus, if the said distinction exists today under the 6th CPC, the same logic would also be applicable for the 5th CPC i.e. w.e.f. 1.1.1996.
13. The next issue is that JAOs of AAAD get the higher pay scale as JAOs in the organized cadre get. Then why the feeder categories denied the pay parity. This issue was very closely examined by us. In Shri R.K.Sharmas case (supra), the Honble High court of Delhi dealt with issue of retrospective application of the pay parity of JAO in AAAD with the JAOs in the organized Accounts Cadre and the following observation is extracted below :-
This is not the case of the petitioner that higher scale of .6500-10500 was accorded to the respondents as a matter of concession without finding any justification for it. The higher scale was given to them as they were working side by side with the persons holding Accounts posts encadred in Civil Accounts Service. Once the petitioner agreed that the functions being performed by the respondents were identical to the functions being performed by those who were encadred in Civil Accounts Service and who, by virtue of being from Organised Accounts Service, were drawing the pay scale of Rs.6500-10500 and the Govt. decided to extend the higher pay scale to them, there was absolutely no justification for not granting the revised pay scale to them retrospectively when those who were holding W.P.(C) No.7231/2007 Page 3 of 7 encadred posts were given that pay scale notionally w.e.f. 1.1.1996 and actually w.e.f. 19.2.2003. The Respondents cited the above reason in support of their stand that JAOs in AAAD were working side by side with persons holding Accounts posts encadred in Civil Accounts service i.e. organized cadre. The Applicants are not similarly placed as the JAOs. Thus, we do not find rationality in this ground pleaded by the Applicants.
14. Applicants raised another ground that Accounts Clerks and Auditors in the Accounts Cadre of BSF were granted the benefits of OM dated 28.02.2003. It is not in dispute that the Accounts Cadre of BSF has been declared organized Accounts Cadre vide order dated 14.11.2005 retrospectively w.e.f. 1.4.1987 and as such they get the benefit of the OM dated 28.2.2003. On this ground, the Applicants fail to convince us to intervene.
15. Having considered totality of facts and circumstances of the case, and have been guided by the judgment of Honble Apex Court, we have analysed the grounds raised by the Applicants. They have failed to convince us calling for our interference in the matter. In the result, we hold that the orders dated 13.7.2010 and 14.7.2009 are legally sustainable.
16. In view of the above, the OA being devoid of merits is dismissed leaving the parties to bear their respective costs.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda)
Member (J) Member (A)
rk