Central Administrative Tribunal - Delhi
Madan Mohan vs Union Of India Through on 10 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 365/2007
with
O.A. No.2535/2006
Reserved on : 19.02.2014
Pronounced on : 10.07.2014
HONBLE MR. JUSTICE SYED RAFAT ALAM, CHAIRMAN
HONBLE MR. V. AJAY KUMAR, MEMBER (J)
HONBLE DR. BIRENDRA KUMAR SINHA, MEMBER (A)
OA 365/2007
1. Madan Mohan,
Employee Code No.A206464,
G-430, Sarojini Nagar,
New Delhi-110023.
2. R.S. Rathore,
Employee Code No.A066295,
S-78, Sunder Block,
Shakarpur, Delhi-110092.
3. Jawahar Singh,
Employee Code No.A065933,
Sector-IV-17G,
Gole Market, DIZ Area,
New Delhi-110001.
4. Devender Kumar,
Employee Code No.A065805,
219, Hari Nagar, Ashram,
New Delhi.
5. Shashi Bhushan,
Employee Code No.A066617,
I-908, Sarojini Nagar,
New Delhi-110023.
6. Sohan Singh Rawat,
Employee Code No.A066662,
C4c/384, Janak Puri,
New Delhi-110058.
7. D.S. Rautela,
Employee Code No.A065780,
Sector-IX, House no.610,
New Delhi-110022.
8. Vivek Tyagi,
Employee Code No.A066815,
GI-885, Sarojini Nagar,
New Delhi-110023.
9. Mukesh Kumar,
Employee Code No.A066055,
House No.3631, Ram Nagar Ext.,
Sahadra, Delhi-110092.
10. Smt. Neeru Jain,
Employee Code No.A066141,
GI-768, Sarojni Nagar,
New Delhi-110023.
11. Smt. Bimla Rani,
Employee Code No.A065678,
62/4, Kavita Colony,
Kirari Road, Nagloi,
Delhi-110041.
12. Smt. Neelam Taneja,
Employee Code No.A066154,
G-275, Nanak Pura,
New Delhi-110021.
13. Smt. Usha Rana,
Employee Code No.A066761,
F-74/2, Andrews Ganj,
New Delhi-110049.
14. Smt. Tripta Soni,
Employee Code No.A066729,
68A, Pocket-A, Mayur Vihar,
Phase-II, New Delhi-110091.
15. Smt. Parvinder Gulati,
Employee Code No.A066170,
2A/56, Ramesh Nagar,
New Delhi-110015.
16. Smt. Naishrity Mathur,
Employee Code No.A22078,
J02, Palika Niketan,
Sector-X, R.K. Puram,
New Delhi-110022.
17. Sunil Kumar,
Employee Code No.A066646,
A-205, Kidwai Nagar (East),
New Delhi-110023.
18. Smt. Darshan Nandwani,
Employee Code No.A065863,
2/77, Subhash Nagar,
New Delhi-110027.
19. Mahesh Chand Sharma,
Employee Code No.A066068,
C-11/40, Sector-5, Rohini,
Delhi-110085.
20. Smt. Hemlata Radhwani,
Employee Code No.A065889,
C-I, F-21, Lodi Colony,
New Delhi-110003.
21. Smt. Promila Bhatti,
Employee Code No.A066211,
Plot No.10, Dewat Colony,
Khera Dewat Road,
Gurgaon (Haryana).
22. Smt. Kamlesh Kandpal,
Employee Code No.A065988,
Sector-I, House No.17,
R.K. Puram, New Delhi-110022.
23. Rajender Kumar,
Employee Code No.A206451,
A-31, Raj Nagar-II,
Palam Colony,
New Delhi-110045.
24. N.C. Kaushik,
Employee Code No.A066138,
178/4, Gali No.2, Padam Nagar,
Kishan Ganj, Delhi-110007.
25. Harinder Singh Bisht,
Employee Code No.A206505,
I-305, Sarojini Nagar,
New Delhi-110023. .. Applicants
(By Advocate : Shri Pramod Kumar Sharma)
Versus
Union of India through
1. Secretary,
Department of Expenditure,
Ministry of Finance,
North Block, New Delhi.
2. Secretary,
Ministry of Defence,
New Delhi.
3. J.S. (Trg.) and C.A.O.,
Ministry of Defence,
E-Block, Hutments,
New Delhi-110011. .. Respondents
(By Advocate : Shri Rajinder Nischal with Shri Ashish Nischal)
with
OA 2535/2006
1. Gulshan Rai,
S/o Late Shri Harbans Lal,
A-4/539, Paschim Vihar,
New Delhi-110063.
2. Mahavir Krishan,
S/o Late Shri N.D. Vadhera,
B-94, Surya Nagar,
Ghaziabad, Uttar Pradesh.
3. N.D. Arora,
S/o Late Shri L.R. Arora,
B-30, Ist Floor, Lajpat Nagar-III,
New Delhi-110024.
4. Kewal Krishan,
S/o Late Shri Hans Raj,
S-5/274, R.K. Puram,
New Delhi-110021.
5. M.S. Verma,
S/o Late Shri Ghan Syam Dass,
BH/125, East Shalimar Bagh,
Delhi-110088.
6. Rajendra Singh,
S/o Late Shri R.B. Singh,
D/389, Moti Bagh-I,
New Delhi-110021.
7. Smt. S.K. Sharma,
W/o Shri K.L. Sharma,
2990, Ranjit Nagar,
Gali No.11, New Delhi.
8. R.K. Pareekh,
S/o Late Shri R.r. Pareekh,
2528, Kunjgab,
Rewari (Haryana).
9. Smt. C.R. Sikka,
W/o Shri M.K. Sikka,
466, Pocket C8, Sector-8,
Rohini, New Delhi.
10. Prem Lal,
S/o Late Shri Sher Singh,
292, Village & Post Office-Bakhtawar Pur,
Delhi-110036.
11. H.S. Rathore,
S/o Late Shri B.R. Rathore,
2/2, New Lyalpur, Ram Nagar,
Delhi-110051.
(By Advocate : Shri Pramod Kumar Sharma)
Versus
Union of India through
1. Secretary,
Department of Expenditure,
Ministry of Finance,
North Block, New Delhi.
2. Secretary,
Ministry of Defence,
New Delhi.
3. J.S. (Trg.) and C.A.O.,
Ministry of Defence,
E-Block, Hutments,
New Delhi-110011. .. Respondents
(By Advocate : Shri Rajinder Nischal with Shri Ashish Nischal)
O R D E R (Common)
By Shri V. Ajay Kumar, Member (J):
These OAs are referred to this Full Bench by a common order of the Honble High Court of Delhi dated 14.08.2012 in Writ Petition (C) No.1657/2012 and Writ Petition (C) No.1676/2012.
2. Since the issue involved in these two OAs is similar and identical, they are being disposed of by way of this common order.
BRIEF BACKGROUND FACTS:
3. As per the recommendations of the Fourth Central Pay Commission, a Committee was set up under the Chairmanship of Dr. N. Seshagiri to make recommendations for rationalization of various EDP Grades in the Ministries. Accordingly, a revised pay structure for EDP Posts was introduced, on the basis of the recommendations of the Seshagiri Committee w.e.f. 11.09.1989, through OM No.F.7(1)/IC/86/44 dated 11.09.1989 issued by the Ministry of Finance, Department of Expenditure, which are reproduced as under:
S.No. Designation of post Pay Scale Data Entry Operators
1. Data Entry Operator Rs.1150-1500 This will be entry Grade Grade `A for Higher Secondary with knowledge of Data Entry work.
2. Data Entry Operator Rs.1350-2200 This will be entry grade Grade `B for graduates with Knowledge of Data Entry work or promo-
tional Grade for Data Entry Operator Grade `A.
3. Data Entry Operator Rs.1400-2300 Promotional Grade Grade `C
4. Data Entry Operator Rs.1600-2660 Promotional Grade Grade `D
5. Data Entry Operator Rs.2000-3500 Promotional Grade Grade `E Data Processing /Programming Staff
1. Data Processing Rs.1600-2660 Entry grade for Asstt. Grade `A graduates with Diploma /Certificate in Computer application.
2. Data Processing Rs.2000-3200 Promotional Grade Asst. Grade `B
3. Programmer Rs.2375-3500 Direct Entry for holders of Degree in Engineering or post-graduation in Science/Maths etc. or post-graduation in Computer Application Or By promotion from Data Processing Assistant Grade `B.
4. Senior Programmer Rs.3000-4500 Promotional Grade.
4. The Seshagiri Committee noted that the nature of duties and responsibilities attached to the Data Entry Operators (DEOs) were identical in all the Departments and there was no difference in the qualifications and duties, and, therefore, recommended that the similar pay scales may be given to the EDP personnel in all the Ministries. Accordingly, the aforesaid pay scales were extended to Data Entry Operators in different departments, but only w.e.f. 11.09.1989 and not from 01.01.1986, i.e., the date on which the 4th Central Pay Commission recommended the grant of the revised pay scales.
Brief facts of OA No.365/2007:
5. Pursuant to the Ministry of Finance, OM dated 11.09.1989, the pay scales of the EDP Posts in the ADG System/Miso, Ministry of Defence, wherein the applicants are working, in different grades of the EDP discipline were revised and the posts were re-designated vide letter dated 08.01.1991 of the Government of India, Ministry of Defence. The said OM dated 8.01.1991 was followd by OM dated 06.12.1994, in terms of which the category of EDP staff were revised and so also the provisions as to pay scales and qualifications attached to the same, w.e.f. 11.09.1989.
6. The applicants in this OA have been initially appointed as Computer and later on promoted as Senior Computer in the scale of Rs.1200-2040, in the respondent-Ministry of Defence. The post of Computer was later on re-designated as Data Entry Operator (DEO, for short) Grade-A in the scale of Rs.1150-1500 and the post of Senior Computer was re-designated as DEO Grade-B in the scale of Rs.1350-2200 vide respondents Office Order dated 08.01.1991. Subsequently, the post of Computer has again been re-designated as DEO Grade-B in the scale of Rs.1350-2200 and the post of Senior Computer as Data Entry Processing Assistant (DEPA, for short) Grade-A in the scale of Rs.1600-2600 vide respondents Office Order dated 6.12.1994. However, when the applicants were promoted as DEO Grade-B, they were given only the scale of pay of Rs.1350-2200 against the existing vacancies, vide Annexure A4 order dated 15.01.1997. They were denied the promotional post of DEPA Grade-A in the scale of Rs.1600-2660 on the basis of their qualification.
7. When, in case of B.N.Sharma and Others, who are working in AFHQ & ISO, granting of higher pay scale was denied, on the similar ground of not possessing the required qualification, this Tribunal while allowing their OA 1741/1997 on 13.08.1998 (Annexure 10) observed as follows:
In the circumstances, redesignation of Programme Assistants DMIS/Statistical Investigators AFHQ/ISO as Programmers in the higher grade while stipulating post graduate qualification does not have legal basis by way of corresponding amendment to the recruitment rules and therefore cannot be implemented by the Respondents to the disadvantage of the Programme Assistants/Statistical investigators originally re-designated as DPA Grade B by the earlier order dated 08.01.1991. In view of this, the upgraded scale of Rs.2375-3500 cannot be denied to the applicants as they were duly recruited as Programme Assistants/Statistical Investigators under the extent Recruitment Rules of 1985. In our considered view Respondents cannot also frustrate the benefits of revision of pay scales and placement/promotion of incumbent Programme Assistants/ Statistical Investigators by applying revised educational qualifications for the incumbents. Revision of cadre structure post and new educational qualifications have necessarily to be incorporated as part of recruitment rules which as and when incorporated in amended recruitment rules could only have prospective application and would apply only to the future recruits/promotees to these posts.
The WP (C) No.1212/1999 filed against the said order was dismissed by the Honble High Court of Delhi vide its Judgement dated 10.01.2002 (Annexure A11).
8. Shri R.K.Sharma and Others, who are working as Technical Assistants in the Joint Cipher Bureau, Ministry of Defence, when they were placed in the lower grade of DPA Grade-A, and when some of their juniors placed in the higher grade of DPA Grade-B, on the basis of their qualifications, filed OA No.553/2003 and OA No.550/2003 in this Tribunal. This Tribunal by its Order dated 18.12.2003 (Annexure A2) by following the Judgement in B. N. Sharmas case (supra) allowed the said OAs.
9. Smt. Shama Kaul and Others, who are working as Computer, Sr. Computer and Statistical Assistants in the Ministry of Defence in the pay scale of Rs.950-1150, Rs.1200-2040 and Rs.1400-2300 respectively, filed OA No.2587/2005 seeking a direction to re-fix their pay in the new EDP pay scales of DEO Grade-B (Rs.1350-2200), DPA GradeA (Rs.1600-2660) and DPA Grade-B (Rs.2000-3200), without insisting of possessing of revised qualifications and experience, in terms of the Judgement in B.N.Sharma and R.K.Sharma cases (supra). This Tribunal by Order dated 19.05.2006 following the Judgements in B.N.Sharma and R.K.Sharma allowed the said OA.
10. The applicants in the present OA, i.e., Shri Madan Mohan and Others (OA No.365/2007) who are similarly situated like the applicants in B.N.Sharma, R.K.Sharma and Shama Kaul cases (supra), made representations to the respondents to extend the benefit of the said Judgements to them also as they are also similarly placed like the applicants in the said cases. The respondents rejected the said request of the applicants vide the impugned Order dated 30.11.2006 (Annexure A1), on the ground that refixation of new EDP Pay Scales was restricted to the applicants in the said cases only and that no general order for revised pay scales has been issued by Govt. of India. Aggrieved by the same, the applicants preferred the present OA seeking following reliefs:
to direct the respondents to re-fix the new EDP pay scales of D P A Grade A (Rs.1600-2660 in respect of Applicants accordingly with effect from 1.1.86 or from the date of their promotion on the post of D E O Grade B (Senior Computer) whichever is later with all consequential monetary benefits in terms of the judgement of this Tribunal dated 24.11.2006 in O.A.No.2587/2005 titled as Shama Kaul & Others v. Union of India, the judgements by the Honble High Court of Delhi dated 10.1.2002 in Civil Writ Petition No.1212/99 titled Mr. B.N.Sharma & Ors. v. Union of India & Others and judgement of this Tribunal dated 18.12.2003 in OA No.553/2003 titled R.K.Sharma & Ors. vs. Union of India & Ors. keeping in consonance with the principle of equal treatment as enshrined in Article 14 of the Constitution of India.
Brief facts in OA No.2535/2006:
11. The applicants No.1 to 11 are retired and they were initially appointed as Machine Operators/Junior Computer/KPO and thereafter they have been re-designated as DEO-`A in the pay scale of Rs.1150-1500 as per Office Order dated 08.01.1991 w.e.f. 11.09.1989. They also prayed for similar relief as that of the applicants in OA No.365/2007.
12. The applicants, who are working/retired in the Ministry of Defence, in all the aforesaid OAs, filed the same, praying for re-fixation of their pay in their respective pay scales w.e.f. 01.01.1986 instead of 11.09.1989 when their pay was refixed.
ISSUE FRAMED FOR CONSIDERATION:
Since, no specific issue is referred to this Full Bench, by the Honble High Court of Delhi, for consideration, for better understanding of the case, we frame the following issue for consideration:
Whether the EDP Staff working in the Ministry of Defence are entitled for pay parity in the pay scales with other EDP staff who have been granted pay scale w.e.f. 01.01.1986 or w.e.f. 11.09.1989, as has been granted to them?
13. In OA No.1953/2005 (R.P.Raghav and Others) and batch, this Tribunal vide its Order dated 6.10.2010 had an occasion to consider similar issue and having found that the applicants therein were not entitled for the benefits of the revised scales and pay fixation w.e.f. 01.01.1986, dismissed the said OAs. The relevant paras of the said Judgement read as follows:
6.5 Considering, the limited mandate before us of having a re-look at the claims in the OA, as per the directions of the Honble Delhi High Court vide its common order dated 11.12.2009 in the CWP No.5777/2007 along with two others CWPs; the extension of the benefits from an earlier date by placing reliance on those orders would no more hold ground. Instead, the issue needs to be examined as to whether it was simply a case of re-fixation of pay in a revised pay scale on a redesignated post or whether it involved a restructuring exercise in the sense of redesignation of an existing post or creation of a new one prescribing higher qualifications and experience; as well as the decision regarding the number of posts in a particular category. According to the law laid down by the Honble Apex Court in Secretary, Madras, Civil Audit and Account Association and Anr. etc. (Supra), on which the Honble High Court had relied in this case, this entire exercise would involve a conscious decision on the part of the Administrative Authorities. Further, even with regard to grant of the benefit of the revised scale to a particular employee, it would not be mere a question of refixation in revised scale but an assessment of that persons suitability, as per the prescribed criteria.
6.6 Applying this yardstick, we find a merit in the contentions of the respondents. Whereas the order dated 08.01.1991 had merely prescribed revised designations and pay scales of various EDP posts under the respondents; the subsequent OMs dated 06.12.1994 and 20.01.1995 had presecribed different grades and redesignated posts as linked with qualifications and experirnece. Besides, the number of posts in different categories had also been changed, under the restructuring. As per para (b) of the OM dated 06.12.1994, as a one time measure the concerned employees were to be placed/promoted in different grades in accordance with the provisions contained in Annexure-1. This, by a logical inference, meant that the grant of a particular scale to an employee was to be in accordance with his/her fulfilling the prescribed qualifications, after the assessment of suitability. As regards the date of operation of these revised scales, it had also been stated in these subsequent OMs that the same would apply from 11.09.1989 or from the date of their regular promotion to the relevant pre-revised posts, whichever was later.
14. This Tribunal, by its separate orders, both dated 21.10.2011, allowed the present OA No.365/2007 and OA No.2535/2006, without considering the aforesaid Judgement of a Coordinate Bench in OA No.1953/2005 and batch (R.P.Raghav & Others), though brought to its notice by way of written arguments of the respondents. Noticing the said fact, the Honble High Court of Delhi vide its common Order dated 14.08.2012 in WP(C) No.1657/2012 and WP (C) No.1676/2012 set aside the aforesaid orders dated 21.10.2011 and remitted the said OAs for a fresh adjudication by a Full Bench, and hence, this reference.
15. It is to be noted that, in an earlier occasion, when two Coordinate Benches of this Tribunal while dealing with similar issue, i.e., the re-fixation of pay of EDP personnel w.e.f. 01.01.1986 instead of 11.09.1989, delivered two conflicting decisions, a Full Bench of this Tribunal, by its order dated 31.07.2000, after considering the whole issue, allowed OA No.2639/1999 (Babu Lal & Others v. Union of India) directing to grant the benefit of the OM dated 11.09.1989 to the applicants therein, who belongs to the EDP personnel of Ministry of Industry, w.e.f. 01.01.1986 with all consequential benefits. Though the said Judgement of the said Full Bench covers the field, the same was not brought to the notice of the respective Benches, while deciding the OA No.1953/2005 and batch and OA No.365/2007 with OA No.2535/2006.
16. The said Full Bench of this Tribunal while disposing of the OA No.2639/1999 on 31.07.2000, elaborately discussed the relevant case law of the Honble Apex Court, including the decision in Union of India & Others v. Secretary, Madras Civil Audit and Accounts Association and Another, (1992) 2 SCC 1, basing on which the Division Bench of this Tribunal dismissed the OA No.1953/2005 and batch (R.P.Raghav & Others).
17. The relevant paragraphs of the decision of the said Full Bench No.2639/1999 read as follows:
4. When the present O.A. was taken up for hearing before a Division Bench to which one of us (Ashok Agarwal, J., Chairman) was a party, reliance was placed on behalf of respondents on a decision of this Tribunal in O.A.No.2346A/95 decided on 18.11.1999 which has taken a view contrary to the one which has been taken in the aforesaid O.As. By the aforesaid order of this Tribunal in O.A. No.2346A/95, this Tribunal while considering a claim similar to the one made in the present O.A. and other O.As., has dismissed the O.A. placing reliance on a decision of the Supreme Court in Union of India & Ors. v. Secretary, Madras Civil Audit and Accounts Association & Anr. (1992) 20 ATC 176, by observing as follows:
The 4th Pay Commission had suggested, inter alia, that in respect of large number of EDP posts which are existing in various Ministries/Departments, other than the Department of Railways, which have been dealt with separately in Chapter 10, there should be a regularly constituted service for staff engaged on EDP work. In this connection, they had recommended that the Department of Electronics should examine the matter and suggest reorganization of the existing posts and prescribe uniform pay scales and designations in consultation with the Department of Personnel which exercise will naturally take some time. The applicants cannot, therefore, claim that their case is similar to the EDP staff in the Railway Administration because the Pay Commission itself had dealt with them separately. They had also recommended that the Government will have to take specific decisions to give effect to the revised pay scales from a suitable date keeping in view all relevant aspects, including the administrative exigencies. Admittedly, in pursuance of the 4th Pay Commissions recommendations, the Government has carried out the exercise to consider the replacement pay scales to the incumbents of the various EDP posts and issued the impugned O.M. dated 11.10.1989 which gave effect to the revised pay scales from 11.9.89. We respectfully follow the observations of the Honble Supreme Court in Union of India & Ors. vs. Secretary, Madras Civil Audit and Accounts Association and Anr. (supra) that giving two different dates of implementation of the recommendations in respect of the EDP personnel being dealt with here does not violate the principles of equality enshrined in Articles 14 and 16 of the Constitution. In the light of the Supreme Court judgement which is fully applicable to the facts of this case, which we are bound to follow in the present case, we find the contentions of the applicants that there must be parity in the pay scales with the other EDP staff which were given the pay scales w.e.f. 1.1.1986 on the recommendations of the 4th Pay Commission cannot be accepted and are accordingly rejected. In the circumstances, OA fails and is dismissed. No order as to costs.
5. As aforesaid conflicting views had been brought to the notice of the Bench, present issue by an order passed on 4.7.2000 has been referred to the Full Bench.
6. We have heard Shri Deepak Verma, the learned counsel appearing on behalf of applicants as also Shri D.K.Srivastava, the learned proxy counsel for Shri V.S.R.Krishna appearing on behalf of respondents.
7. A reference to the decision of the Supreme Court in the case of Union of India v. Secretary, Madras Civil Audit and Accounts Association (supra) can usefully be made. The Supreme Court in the aforesaid case was concerned with Office Memorandum (O.M.) dated 12.6.1987 issued by the Government of India, Ministry of Finance, Department of Expenditure. The question which had arisen for consideration before the Supreme Court was whether the benefit of the aforesaid O.M. was to be given effect from 1.4.1987 as indicated in the O.M. or w.e.f. 1.1.1986. Aforesaid O.M. dated 12.6.1987 was based on the recommendations of the 4th Central Pay Commission which consisted of two parts. The first part recommended corresponding scales of pay for the existing posts in the Accounts Wing giving effect from 1.1.1986. The other part related to the pay scales of the posts of Accounts officers which were newly created promotional posts. The second part of the recommendation of the Pay Commission clearly indicated that a number of posts to be placed in these scales were to be identified by the Government and the Government could, therefore, decide and then give effect to the same at a later date. The following observations of the Supreme Court will indicate that the Court was considering the grant of pay scales in respect of posts which had been newly created; the same did not relate to posts which were already in existence, as is the case in the case at hand:
4. The second part of the recommendations relates to treatment of scales of pay of Rs. 1,400.00-2,000.00 and Rs. 2,000.00-3,200.00 as functional grades requiring promotion as per normal procedure and also the number of posts to be placed in these scales of pay. These recommendations clearly fall in the category of other recommendations and the Pay Commission itself has indicated that in respect of such recommendations the government will have to take specific decisions to give effect from a suitable date. The government, therefore, had to take the decision in respect of number of posts to be placed in these scales of pay. In this context it is relevant to refer to paragraph 4 of the Office Memo dated 12/06/1987. It reads as under:
(4 The question regarding number of the posts to be placed in the higher scales of pay has been under the consideration of the government and it has now been decided that the ratio of number of posts in higher and lower scales in the Organised Accounts cadres as well as in Accounts wing of the IA & AD may be as follows:
(I) S. Officer (SO) Rs. 2,000.00-2,300.00-EB-75-3,200.80 per cent (II) S. Officer Rs. 1640-60-2600-EB-75-2900 20 per cent (III) Senior Accountant Rs. 1,400.00-40.00-1,600.00-50.00-2,300.00-EB-60.00-2.600.80 per cent (IV) Junior Accountant Rs. 1200-30-1560-EB-40-2040 20 per cent.
. .. But the Pay Commission also pointed out that the posts in the scales of pay of Rs. 1,400.00-2,000.00 and Rs. 2,000.00-3,200.00 should be treated as functional grades requiring promotion as per normal procedure and it was left to the government to decide about the number of posts to be placed in these scales. .
5. In this context it is also necessary to note that the post of Assistant Accounts Officer was not in existence earlier which is now brought under a functional grade. For that purpose necessary rules have to be framed prescribing the eligibility etc. and the senior Accountants who have completed three years' regular service in the grade are upgraded to this post. .
6. ..It cannot be said that on that date the posts identified subsequently were also in existence. In such a situation the principle of equal pay for equal work is not attracted as on 1/01/1986.
8. Aforesaid decision, in our view, is clearly distinguishable. Aforesaid decision related to posts which were newly created promotional posts. As far as applicants in the instant case are concerned, no new posts have been created; they have merely been re-designated as Data Entry Operators/Data Processing Assistants. The Supreme Court in a later decision in the case of Chandraprakash Madhavrao Dawda & Ors. v. Union of India & Ors., 1998(2) SCSLJ 390 was concerned with the interpretation to be given to the very same O.M. dated 11.9.1989 with which we are concerned in the instant case. In regard to the very same issue, the Supreme Court has concluded as under:
61. For all the above reasons, the impugned orders dated 2-7-90, 16-3-98 and all other orders which have the effect of redesignating the appellants - who were recruited as Data Processing Assistants - as Data Entry operators in the scale of 1350-2200 (or 1400-2300 by concession of counsel) are arbitrary and illegal, ultra vires and are declared violative of Articles 14 and 16 of the Constitution of India. The appellants are declared entitled to the designation of Data Processing Assistants grade III (also called earlier as Gr. B) in the scale of Rs. 1600-2660 with effect from 1-1-1986, the date when the IV Pay Commission scales came into force. The appellants are also entitled to the scale of Rs. 5000-8000 with effect from 1-1-96 in view of the government orders passed in connection with the Vth Pay Commission recommen-dations. Aforesaid decision has been followed by a later Judgement of the Supreme Court in the case of Kamlakar & Ors. v. Union of India & Ors., 1999(3) SLJ 307 whereby the benefit which had been granted to the appellants in the earlier decision was extended also to others who had approached the Supreme Court in the aforesaid case.
9. In our Judgement, if one has regard to the aforesaid decisions of the Supreme Court, we have no hesitation but to hold that applicants in the present O.A. are entitled to the benefit of the aforesaid O.M. of 11.9.1989 with effect from 1.1.1986.
10. The reference is accordingly answered in the aforestated terms.
18. The issue involved in the present OAs is similar and identical to the issue decided by the Full Bench in OA No.2639/1999. In both the cases, no new posts have been created and that the existing posts have merely been re-designated as Data Entry Operators/ Data Processing Assistants. Further, the interpretation of the same OM dated 11.09.1989 is involved. The Full Bench after distinguishing the Judgement in Secretary, Madras Civil Audit and Accounts Association (supra), and after following the decision in Chandra Prakash Madhav Rao Dadwa (supra) granted similar relief to the applicants therein, who are also similarly situated like the applicants herein aforesaid.
19. In view of the fact that the Full Bench, followed the Judgement of the Honble Apex Court in Chandra Prakash Madhav Rao Dadwa (supra), wherein the decision in Secretary, Madras Civil Audit and Accounts Association (supra), was considered and distinguished, we fully agree with the well considered reasoning given by the said Coordinate Bench (Full Bench) of this Tribunal.
20. Further, similar view taken by a Division Bench of this Tribunal, in B.N.Sharmas case (supra), was upheld by the Honble High Court of Delhi in W.P.(C) No.1212/1999 on 10.01.2002.
21. We are fortified, in our view, by yet another recent decision of the Honble High Court of Delhi in W.P.(C) No.5296 of 2000 dated 22.09.2011 (Udai Pal & Ors. v. Union of India & Others) wherein the aforesaid Full Bench Judgement in OA No.2639/1999 [Babu Lals case (supra)] was considered and approved, and the relevant paragraphs read as under:
10. It is very clear that the IVth Central Pay Commission itself had made certain recommendations for streamlining the pay structure and for constituting regular service for staff engaged in EDP work. The Sheshagiri Committee was appointed to go into those questions and give its recommendations and also remove the anomaly which had resulted in implementation of IVth Central Pay Commission. The Sheshagiri Committee thus gave its recommendations vide which anomaly was removed. Once that was the scope of exercise done by the Sheshagiri Committee and the recommendations/suggestions for rationalizing the pay scale were given, it was to be given effect to from the date when IVth Central Pay Commission was enforced, i.e. 01.01.1986 and not from the date of office order, i.e. 11.09.1989.
11. In so far as EDP posts are concerned, they were already in existence. It is stated at the cost of repetition that IVth Pay Commission had also recommended streamlining the pay structure of the staff engaged in EDP work in different departments. Sheshagiri Committee was set up only for the purpose of removing anomalies. It is a matter of record that in various other departments/Ministries, the benefit of pay scale to such EDPs is directed to be given from 01.01.1986. In fact, there was conflict of opinion between various benches of the Tribunal itself. In some of the judgments referred by some benches, the cut-off date of 11.09.1989 had been set aside and benefit given from 01.01.1986 while some other benches maintained the date of 11.09.1989. Matter was referred to the Full Bench in OA No.2639/1989 entitled Babu Lal & Ors. v. Union of India & Ors. The Full Bench rendered its decision on 31.07.2000 holding that benefit was admissible from 01.01.1986. Distinguishing the judgment in case of Secretary, Madras Civil Audit and Accounts Association (supra), the Full Bench relied upon later decision of the Apex Court in Chandraprakash Madhavrao Dawda & Ors. v. Union of India & Ors., 1998 (2) SCSLJ 390 construing the very same OM dated 11.9.1989 and giving benefit from 1.1.1986. The conclusion of the Supreme Court in the said judgment is as under:
61. For all the above reasons, the impugned orders dated 2.7.90, 16.3.98 and all other orders which have the effect of redesignating the applicants who were recruited as Data Processing Assistants as Data Entry Operators in the scale of 1350-2200 (or 1400-2300 by concession of counsel) are arbitrary and illegal, ultra-vires and are declared violative of Articles 14 and 16 of the Constitution of India. The appellants are declared entitled to the designation of Data Processing Assistants grade II (also called earlier as gr B) in the scale of Rs.1600-2660 with effect from 1.1.1986, the date when the IV Pay Commission scales came into force. The appellants are also entitled to the scale of Rs.5000-8000 with effect from 1.1.96 in view of the government orders passed in connection with the Vth Pay Commission recommendations. Aforesaid decision has been followed by a later judgment of the Supreme Court in the case of Kamalkar & Ors. v. Union of India & Ors., 1999 (3) SLJ 307 whereby the benefit which had been granted to the appellants in the earlier decision was extended also to others who had approached the Supreme Court in the aforesaid case.
12. Thus, the matter has been authoritatively determined by the Supreme Court itself qua the same Office Memorandum giving benefit from 01.01.1986 and there is no reason to deprive the petitioners of the said benefit. We thus, make the rule absolute; allow this writ petition; set aside the order of the Tribunal; and hold that the petitioners shall be entitled to the pay scale with effect from 01.01.1986. (Emphasis added)
22. The Division Bench in OA No.1953/2005 and batch (R.P.Raghav and Others) though considered the decision in Babu Lals case (supra) of the Full Bench, but without giving any finding how the same can be distinguishable, dismissed the O.A. by expressing a view contrary to the Full Bench view in Babu Lals case (supra). In view of the same and in view of the fact that the Honble High Court of Delhi in Udai Pals case (supra) categorically, approved the view expressed in Babu Lals case (supra), the decision in OA No.1953/2005 (R.P.Raghav & Others) and batch dated 06.10.2010 is declared as not a good law.
23. In the circumstances and for the aforesaid reasons, we allow the OA No.365/2007 and OA No.2535/2006, and direct the respondents to grant the benefit of re-fixation of pay with all consequential benefits w.e.f. 01.01.1986 to the applicants. The respondents shall complete this exercise within four months from the date of receipt of a copy of this order. There shall be no order as to costs.
(Dr. B.K.Sinha) (V. Ajay Kumar) (Syed Rafat Alam) Member(A) Member(J) Chairman /nsnrvak/