Delhi High Court
Union Of India vs Sh.Dharam Singh & Ors. on 29 July, 2011
Author: Anil Kumar
Bench: Anil Kumar, Sudershan Kumar Misra
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No.3225/2007
% Date of Decision: 29.07.2011
Union of India .... Petitioner
Through Mr.D.S.Mahendru, Advocate
Versus
Sh.Dharam Singh & Ors. .... Respondents
Through Mr. Sant Lal, Advocate for the
respondent Nos.1 to 35.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioner, Union of India through the Secretary, Ministry of Communication has challenged the order dated 20th November, 2006 passed by Central Administrative Tribunal, Principal Bench in O.A No.164/2005 titled as „Dharam Singh & Ors. v. UOI & Ors‟ allowing the WP(C) 3225 of 2007 Page 1 of 26 original application of the respondents and directing the petitioner to grant the same benefit as were granted to the applicants in O.A No.2724/1992 decided by order dated 3rd December, 1997 and to give the pay scales according to the recommendation of the 4th Central Pay Commission and to revise the pay scales so granted in accordance with the recommendation of 5th Central Pay Commission and to further give all consequential benefits. The Tribunal also held that the amendment made to the recruitment rules by notification dated 24th January, 2005 shall have effect from the date of its issue and not retrospectively.
2. Brief facts to comprehend the controversies are that the respondents were working as Packers in the Foreign Post Office at Kotla Road, New Delhi which is under the Department of Post in the Ministry of Communication. The post of Packers was created in 1954 and the respondents were issued separate appointment letters from time to time.
3. The 4th Central Pay Commission had declared Packers in certain departments as skilled labourers and granted them the pay scale of Rs. 950-1500/-. However the petitioners denied the same pay scales for the petitioners, who were placed in the scale of Rs. 750-940/-, in spite of representations made by their association, known as Foreign Post Packers Association (registered), which was also declined. WP(C) 3225 of 2007 Page 2 of 26
4. Since the pay scales and other benefits granted to the Packers of other departments were denied to the Packers of the Department of Post, an original application being O.A No.2724/1992 was filed by two Packers namely Sh.Prem Chand and Sh.Kali Chander as well as a registered association known as Foreign Post Packers Association (Registered). In the said original application it was prayed that the recommendations of the 4th Central Pay Commission in respect of the pay scale to the Packers of other departments be also implemented in case of the Packers of the petitioner and that the post of Packers in the Foreign Post Office be declared as skilled labourers.
5. Packers in other departments of other Ministries were declared as skilled labourers and were given the pay scale of Rs.950-1500/- but for the packers in the Department of Post the pay scale of Rs.750-940/- was recommended.
6. The original application being O.A No.2724/1992 was contested by the petitioner contending, inter-alia, that ordinarily a skilled post requires a specific qualification of ITI certificate or experience certificate or any diploma in the relevant area of work and in the absence of the same, the employees will have to be considered as a group „D‟ employees, since they were inducted into service initially on the basis of WP(C) 3225 of 2007 Page 3 of 26 a literacy test. It was also contended that the 4th Central Pay Commission had not recommended the pay scale of Rs.950-1500/- in case of the Packers of the Department of Post. Instead according to the petitioners it was contended that the recommendations of the 4th Central Pay Commission was that the scale of Rs.260-350/- be conferred upon such skilled employees only after three years of experience. The plea of the petitioner that the Packers in the Department of Post belong to Group „D" post for want of ITI certificate or experience certificate or any diploma in the relevant area of work was negated by the Tribunal on the ground that the matter had been pending before he Tribunal since 1992 and six years had elapsed. Reliance was also placed on an order dated 8th September, 1989 passed in SLP No.535/1988 in the matter of Satish Kumar & Ors v. Delhi Administration. Hence, the Tribunal by order dated 3rd December, 1997 in O.A No.2724/1992 had held that in the circumstances the petitioner had no option but to implement the recommendations in respect of the two applicants in the said Original Application as they had done so in pursuance to the decision of the Supreme Court. Also the Tribunal while allowing the Original Application No.2724/1992 directed the petitioner to implement the decision giving the benefit of the 4th Central Pay Commission to all other similarly placed Packers on the basis of the public policy so that each individual Packer would not have to come to WP(C) 3225 of 2007 Page 4 of 26 the Tribunal for the relief separately. It was held so in para 7 of the said judgment dated 3rd December, 1997, which is as under:-
"7. In the circumstances, after going through the entire case file, and hearing the counsel on either side at length, we are of the opinion that the recommendations of the 4th Pay Commission in this regard shall also be made applicable to the petitioners. We leave the controversy as to whether the Association is a recognized or not, open; on the other hand we would direct the respondents to implement the whatever decision taken, if any, in this regard, with respect to all other similar placed Packers on the basis of the public policy so that each individual Packer may not be brought to this court for relief separately."
7. Though the Tribunal in its order dated 3rd December, 1997 in O.A No.2724/1992 titled as „Prem Chand & Ors v. Union of India & Ors.‟ had held that the recommendations of the 4th Central Pay Commission shall be applicable in respect of other similarly placed Packers of the Department of Post and that they shall entitled for arrears as well, however, despite this categorical stipulation, the relief was declined to the respondents in the present writ, who are Packers in the Department of Post. Since the relief was not granted by the petitioner it ultimately lead to the filing of the contempt petition being CP No. 333/2000 against them.
WP(C) 3225 of 2007 Page 5 of 26
8. The petitioner, thereafter complied with the order of the Tribunal and filed the Compliance Report by reply dated 22nd September, 2004 whereby the order dated 3rd December, 1997 had been implemented only in case of those employees who were applicants in O.A No.2724/1992. Despite the categorical direction by the Tribunal to extend the benefit to all the Packers who are similarly placed, it was not granted to the respondents.
9. The respondents had averred that respondents Nos.1 to 22 were working as Packers in the Foreign Post Office on the date of order i.e. 3rd December, 1997 yet the benefit was denied to them. Although respondents Nos.23 to 35 were working in the Department, however, they were posted as packers only subsequent to the said order on different dates. It was urged that since they were also discharging the same duties as the applicants of O.A No.2724/1992, they too were entitled to get the benefit of the 4th Central Pay Commission.
10. The respondents, therefore, sent a legal notice dated 28th October, 2004 to the petitioner and also contended that they are entitled to the benefits of the replacement pay scale recommended by 5th Central Pay Commission of the pay scale which was recommended by the 4th Central Pay Commission. On failure of the petitioner to grant them the relief, the petitioner filed original application being O.A No.164/2005 WP(C) 3225 of 2007 Page 6 of 26 titled as „Dharam Singh & Ors. v. Union of India through the Secretary, Ministry of Communication & Ors.‟ contending that the matter of pay scale of the Packers of the Foreign Post Office had already been decided by the Tribunal and since the respondents are similarly placed they are also entitled to have the same pay scale as has been made applicable to the applicants in O.A No.2724/1992. By denying them the pay scales, the petitioner has ignored the principle of "equal pay for equal work"
and thus the petitioners have deliberately violated the express provisions of Articles 14 & 16 of the Constitution of India. Further the respondents contended that the earlier O.A No.2724/1992 was contested by the petitioner on the ground that ordinarily skilled post requires a specific qualification of ITI certificate or experience or any diploma in the relevant area of work and in the absence of that the applicants were not entitled to the pay scale recommended by the 4th Central Pay Commission. Relying on the judgment dated 3rd December, 1997 in O.A No.2724/1992 it was contended on behalf of the respondents that the said issue was examined in great detail by the Tribunal and this plea was also rejected by the Supreme Court by its order dated 17th July, 2000 which is as follows:-
" In the absence of there being pre-condition of having I.T.I. certificate or Diploma in 4th Pay Commission Report, the Union of India could not insist for such certification of I.T.I. or diploma. However, we note that the decision under challenge does not relate to the 5th Pay Commission Report.WP(C) 3225 of 2007 Page 7 of 26
The Special Leave Petition is dismissed."
11. The respondents also alleged that the work of Packers in the Foreign Post Office is more responsible and risky, and requires skill as it relates to opening the sealed boxes and repacking all the articles in the same manner. The so called boxes contain very valuable articles as well as material like acids, medicines and other toxic materials, which are harmful to health, apart from being valuable. Relying on a medical checkup report it was contended that 80-90% of Packers in the Foreign Post Office are suffering from tuberculosis and ten beds are always reserved for them in T.B Hospital at Mehrauli. It was asserted that in these circumstances it is inevitable to infer that the duties of the Packers in the Foreign Post Office are more responsible and skilled as compared to the Packers working in other departments.
12. The original application filed by the respondents was contested by the petitioner, contending, inter-alia, that the order dated 3rd December, 1997 in O.A No.2724/1992 had been implemented in the case of the applicants in the said original application and the said benefit could not be extended to the respondents, as some of them were not working as Packers on 3rd December, 1997 when the earlier original application was decided, wherein it was directed to the petitioner to implement the recommendations of the 4th Central Pay Commission, in respect of the WP(C) 3225 of 2007 Page 8 of 26 Packers of the Foreign Post Office also. It was denied that all the 35 respondents are similarly placed. It was also contended by the petitioner that the matter is not within the jurisdiction of the Tribunal as the Central Pay Commission is an Expert Body, being constituted by the Government from time to time and which decides the pay scales and service conditions of the Government employees. Consequently it was contended that only the Pay Commission appointed by the Government are the proper authorities to make recommendations regarding the pay scales and service conditions of the employees.
13. The petitioner reiterated the plea which was also taken while opposing the O.A No.2724/1992 which was decided on 3rd December, 1997 stating that the post of Packers which was re-designated as Mail Peons, is a „Group D‟ post for which the 4th Central Pay Commission had recommended the pay scale of Rs.750-940/- and the replacement scale of Rs.2550-3200/- by the 5th Central Pay Commission. It was also averred that Packers which were re-designated as Mail Peons do not have a separate cadre and Packers are also working in other wings of the department, that is post offices, circle offices etc. It was, however, admitted that the recruitment to all these categories had been made as per the recruitment rules. The petitioner attempted to justify the recommendation of the 4th Central Pay Commission to give the scale of Rs.950-1500/- to the Packers working in the Ministries of Railways, WP(C) 3225 of 2007 Page 9 of 26 Defence, CPWD and Prevention of Food Adulteration and not to the Packers working in the Foreign Post Offices on account of fact that the requirement of the educational qualifications with regard to these posts were higher than the educational requirements for the post of Packers in the Foreign Post Offices. The replacement of the pay scale of Rs.950- 1500/- by the replacement scale recommended by 5th Central Pay Commission was also contested on the ground that not a single respondent was working in Foreign Post department on date of the implementation of 5th Scale Pay Commission with effect from 1st January, 1996.
14. Recommendation of the 4th Central Pay Commission and the replacement scale as recommended by the 5th Central Pay Commission for the Packers of the Foreign Post Office was also resisted on the ground that the petitioner has about 52,000 Group „D‟ employees and hence the extension of the order dated 3rd December, 1997 to all these employees would have a cascading effect to the tune of many crores of rupees annually and it would also have wider repercussions as the Group „D‟ employees working in other Ministries/departments would also raise similar demands. It was also averred that the scale of Rs.3050-4590/- given to the applicants of O.A No.2724/1992 is a scale applicable to Group „C‟ employees. Therefore, if the said scale is given to the Packers who are Group „D‟ employees, it would result in all WP(C) 3225 of 2007 Page 10 of 26 employees being in Group „C‟ and there would be no Group „D‟ staff at all, which would inturn disturb the entire service hierarchy.
15. The petitioner also relied on the recruitment rules of Group „D‟ post in the Department of Post and the amendment to the said recruitment rules carried out in 1989, being Recruitment Rules, 2002 of Group „D‟ post, as well as, order dated 16th December, 2004 whereby the designation of the packers was changed to Mail Peons and the recruitment rules dated 24th January, 2005 whereby the post of packers had been removed from the category of posts in Group „D‟.
16. The respondents had rebutted the pleas and contentions raised by the petitioner and had filed an additional affidavit dated 29th August, 2006 stating that those in service as packers in various post offices between 1st January, 1986 to 31st December, 1995 were entitled to the pay scale of Rs.950-1500/- in terms of the order of the Tribunal dated 3rd December, 1997 and also the revised pay scale recommended by 5th Central Pay Commission of Rs.3050-4590/- with effect from 1st January, 1996. Reliance was placed on Rule 5 proviso and explanation 1 & 2 of Central Civil Services (Revised Pay) Rules, 1997 which reads as follows:-
"5. Drawl of pay in the revised scales WP(C) 3225 of 2007 Page 11 of 26 Save as otherwise provided in these rules, a Government servant shall draw pay in the revised scale applicable to the post to which he is appointed:
Provided that a Government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
Explanation 1.- The option to retain the existing scale under the proviso to this rule shall be admissible only in respect of one existing scale.
Explanation 2.- The aforesaid option shall not be admissible to any person appointed to a post on or after the 1st day of January, 1996, whether for the first time in Government service, or by transfer or promotion from another post and he shall not be allowed pay only in the revised scale."
17. Regarding the aspect of the change of designation from Packers to Mail Peons, it was asserted that the change of designation does not change the nature of work and does not affect the entitlement to the pay scale ordered by the Tribunal by order dated 3rd December, 1997 and thus would not affect the pay of future Packers, re-designated as Mail Peons after 24th January, 2005.
18. The respondents also filed another additional affidavit dated 8th September, 2006 to rebut the plea of the petitioner that the respondents were not appointed as Packers but as Group „D‟ employees. It was asserted by the respondents that Group „D‟ is not a post but a group of several posts. Certain memos dated 5th February, 1998, 5th July, 2002 WP(C) 3225 of 2007 Page 12 of 26 and 29th August, 2003, were also filed by the respondents to reiterate that they were appointed as Packers and that they had been working as Packers and reliance was placed on their designation given as "packers" in the Recruitment Rules of 1970 as well as in 2002.
19. Although, by earlier order dated 3rd December, 1997 the Tribunal had held that the 4th Central Pay Commission recommendations be made applicable to similarly placed packers on the basis of the public policy, so that each individual packer may not have to come to the Court for the relief separately, yet the relief is denied to respondents who are similarly placed in violation of the said order. The respondents relied on State of Karnataka & Ors v. C.Lalitha, 2006 (2) SCC 747 holding that all persons similarly situated should be treated similarly irrespective of the fact that only one person had approached the Court.
20. The Tribunal after considering the pleas and contentions of the respondents and petitioners relied on the provisions in the Recruitment Rules pertaining to the respondents. Reference was also made to the Schedule to the Indian Posts & Telegraphs (Class IV Posts/Group „D‟ Posts) Recruitment Rules, 1970/2002/2005 (Amendment). It was noticed that there are two parts, one pertaining to Circle and Administrative Offices and the other pertaining to Subordinate Offices. However, in both parts the first entry includes the post of Packers. The WP(C) 3225 of 2007 Page 13 of 26 Tribunal held that the post of packers continued in the Recruitment Rules till it was deleted by amendment dated 24th January, 2005. The executive order passed before 24th January, 2005 changing the designation of Packers to Mail Peon in the Administrative Offices, as well as, Subordinate Offices and to Mail Peons in the Foreign Post Office was ignored on the ground that the statutory rules could not be overridden by executive instructions and relied on „UOI & Ors v. Somasundaram Vishwanath & Ors‟ (1989) 1 SCC 175 „and Vijay Singh Rao v. State of Haryana & Anr‟, (1986) 1 SLR 455.
21. The Tribunal also held that by decision dated 3rd December, 1997 in O.A No.2724/1992 it had been concluded that the Packers in the Foreign Post Offices were equally placed as Packers in other departments and that they had to be treated as skilled labourers in terms of the recommendation of the 4th Central Pay Commission. It was also held that the 4th Central Pay Commission had not insisted on ITI Certificate or diploma as a pre condition to a particular category of employees being declared as skilled labourers.
22. The Tribunal also observed that since the order dated 3rd December, 1997 in O.A No.2724/1992 had attained finality as the writ petition filed against the said order was dismissed and the special leave petition filed was also not allowed, the order has to be implemented for WP(C) 3225 of 2007 Page 14 of 26 all Packers working with the Petitioner irrespective of their date of joining, with respect to the date of implementation of the recommendations of the Fourth and Fifth Central Pay Commission. It was further held that the said order was not in persona but an order in rem, since the Tribunal had directed the implementation of the recommendations of the 4th Central Pay Commission, in respect of all similarly placed Packers. Therefore, the same benefits as were given to the applicants in O.A No.2724/1992 are also admissible to the respondents. The relevant paras 27, 28, 29 & 30 of the judgment of the Tribunal are as under:-
27. Thus as per the Recruitment Rules, the post of Packer under the Department of Posts continued till it was abolished by amendment to the Recruitment Rules dated 24.01.2005.
28. The issue before us is to decide as to who are entitled to the relief granted by this Tribunal‟s order in OA No. 2724/1992 and in particular, whether the applicants are entitled for that relief. In this context, it is important to note that in OA No. 2724/1992 (supra) this Tribunal had come to the conclusion that Packers in the Foreign Post Offices were equally placed as Packers in other departments; that Packers were to be treated as skilled labourers in terms of the recommendation of the Fourth Central Pay Commission and that the Fourth Central Pay Commission had not insisted on ITI certificate or diploma as a pre-condition to a particular category of employees being declared as skilled labourers. In the context of these findings and also relying on a catena of cases decided by various Courts confirming the principle of „equal pay for equal work‟ as well as the judgment of the Hon‟ble Supreme Court in SLP No. 5735/1998 in the matter of Satish Kumar and Ors. Vs. Delhi Administration dated 08.09.1989, this WP(C) 3225 of 2007 Page 15 of 26 Tribunal had ordered that the respondents had no option but to implement the recommendations of the Fourth Central Pay Commission with regard to the applicants therein. It was also made clear that the order of the Tribunal should be implemented in respect of all other similarly placed Packers as a matter of public policy so that each individual Packer may not have to knock at the doors of this Tribunal for relief separately. Thus, it can be seen that the order of this Tribunal in OA No. 2724/1992 was not an order in persona but an order in rem. That order has also attained finality with the dismissal of the SLP filed by the respondents before the Hon‟ble Supreme Court. In effect that order has to be implemented for all the Packers working with the respondents irrespective of their date of joining vis-à-vis the date of implementation of the recommendations of the Fourth or Fifth Central Pay Commission or the date on which the order of this Tribunal in OA No. 2724/1992 (supra) was passed. This is so because there cannot be two pay scales for persons doing the same job in the same organization, which would be violative of Articles 14 & 16 of the Constitution of India.
This is also the ratio of various judgments of the Hon‟ble Supreme Court as pointed in the order of this Tribunal in OA No. 2724/1992 [Randhir Singh v. Union of India & Ors., 1982 (1) SCC 618; Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch v. Union of India & Ors., AIR 1987 SC 2342; Inder Singh & Ors. v. Vyas Muni Mishra & Ors., 1987 (supp) SCC 257; Dhirendra Chamoli & Anr. v. State of U.P., 1986 (1) SCC 637; and Jaipal & Ors. etc. v. State of Haryana & Ors. etc., 1988 (3) SCC 354]. As regards the judgment of the Hon‟ble Supreme Court in the case of State of W.B. & ors. v. Hari Narayan Bhowal & Ors. (supra) cited by the learned counsel for the respondents, we are not here into fixation of pay scale but into providing relief in terms of an order passed by this Tribunal, which has already achieved finality.
29. We have also taken note of the fact that the respondents have nowhere specifically denied that the WP(C) 3225 of 2007 Page 16 of 26 applicants are not at present working as packers in Foreign Post Office, except saying that they were not in service as on 01.01.1986 or that they were not in service on the date of the order in OA No. 2724/1992 i.e. 03.12.1997 etc. Even though it is not an issue before us, but the respondents have, at several places, stated that the educational qualification prescribed for Packers in Department of Posts is primary level only. However, the Recruitment Rules of 1970 as well as 2002 prescribe it as "Middle School standard pass or its equivalent Examination from a recognized school", which according to the respondents is also the qualification prescribed by the Ministry of Railways.
30. Taking the totality of the facts and circumstances into consideration were in respectful agreement with the decision of this Tribunal in OA No. 2724/1992 (supra) wherein respondents were directed to implement the recommendations of the Fourth Central Pay Commission regarding treatment of Packers in Foreign Post Offices as skilled labourers, including the applicants therein as well as other similarly placed Packers, as a matter of public policy so that each individual Packer may not have to approach this Tribunal for relief individually. We, therefore, direct that the applicants in this O.A. shall be granted the same benefit as was granted to the applicants in OA No. 2724/1992 (supra). The pay scale so granted shall also be revised in accordance with the recommendations of the Fifth Central Pay Commission as has been done in the case of beneficiaries in OA No. 2724/1992 (supra). The applicants will also be entitled to all consequential benefits accordingly. Needless to mention, the amendment made to the Recruitment Rules ibid. vide Gazette Notification dated 24.01.2005 shall have effect from the date of its issue, in the absence of any stipulation to the contrary. It will, therefore, apply to persons recruited thereafter."
WP(C) 3225 of 2007 Page 17 of 26
23. The order dated 20th November, 2006 passed by the Tribunal granting benefit of the order dated 3rd December, 1997 passed in O.A No.2724/1992 to the present respondents is challenged by the petitioner, on the ground that by extending the benefit of order dated 3rd December, 1997 to respondent Nos.1 to 35 would have a cascading effect on public exchequer. The order is also impugned on the ground that the post of Packer is now called Mail Peon which is not a separate category but is only the designation of the job performed by the Packers. The petitioner has also contended that the pay scales as recommended by 4th and 5th Central Pay Commission have already been made applicable to the respondents and if the respondents are allowed a higher pay scale, which is applicable to Group „C‟ employees then there shall remain no difference between Group „C‟ and Group „D‟ employees. The petitioner also contended that the relief granted in O.A No.2724/1992 by order dated 3rd December, 1997 was restricted to the applicants in the said application and could not be extended to the present respondents. The petitioner reiterated that respondents Nos.9, 23, 25 to 29 and 31 to 35 were not even working or appointed as Packers in the Foreign Post Office, New Delhi on the date of decision in O.A No.2724/1992.
24. The pleas and contentions raised by the petitioner in the present writ petition are rebutted by the respondents who have filed a detailed WP(C) 3225 of 2007 Page 18 of 26 counter affidavit dated 7th July, 2008 reiterating the pleas and contentions raised on behalf of respondents in their original application and additional affidavits filed before the Tribunal.
25. This Court has heard the learned counsel for the parties in detail and has also perused the original application, reply to application and additional affidavits filed by the respondents before the Tribunal and the pleadings in the writ petition. The learned counsel for the petitioner is unable to give any cogent reason which is legally sustainable as to why the decision dated 3rd December, 1997 cannot be extended to the present respondents who are similarly placed, in as much as, they are the Packers in the Department of Post, Foreign Post Office. This is not denied by the learned counsel for the petitioner that the order dated 3rd December, 1997 in O.A No.2724/1992 has attained finality as it was challenged upto the Supreme Court and their plea that the post of Packers in the Foreign Post Office is not of a skilled worker, as they do not hold an ITI certificate or any diploma in the relevant area of work, had already been repelled by the Apex Court. The same plea cannot be allowed to be taken by the petitioner in the facts and circumstances of the present matter. This cannot be denied that while passing the order dated 3rd December, 1997 it was categorically held that in respect of all other similarly placed Packers on the basis of public policy, the recommendation of 4th Central Pay Commission be given to each WP(C) 3225 of 2007 Page 19 of 26 individual Packer so that they need not come to the Court for the same relief separately. The petitioner had filed a writ petition No.1205/1998 against the order dated 3rd December, 1997 which was dismissed by order dated 17th August, 1999 holding that the Tribunal had relied on the recommendation of the 4th Pay Commission correctly and extended the same to the Packers of the postal department rightly and hence declined to interfere with the order passed by the Tribunal. The petitioner challenged the order of the High Court in W.P.(C) No.1205/1998 dated 17th August, 1999 by filing the Special Leave Petition being SLP No.CC-4208/2000 which was also dismissed by order dated 17th July, 2000 and therefore the order of the Tribunal attained finality.
26. The pleas and contentions already taken on behalf of petitioners, which were decided in O.A No.2724/1992 and were also repelled by order dated 3rd December, 1997 has attained finality and therefore it cannot be re-agitated by the petitioner again. Except the plea that some of the respondents were appointed as Packers after 3rd December, 1997, the date of the decision in O.A No.2724/1992, no new plea has been raised regarding the application of the judgment dated 3rd December, 1997 to some of the respondents.
WP(C) 3225 of 2007 Page 20 of 26
27. This is not disputed that respondent Nos.1 to 22 were appointed as Packers in the Foreign Post Office prior to 3rd December, 1997. After the said decision has become final, which also held categorically that it would be applicable to all similarly placed Packers on the basis of public policy, so that the individual packers may not have to file a separate petition for relief, the relief of the pay scale as recommended by the 4th Central Pay Commission and the replacement of scale as recommended by 5th Central Pay Commission cannot be denied to them. No cogent ground has been raised by the petitioner to deny the relief to the respondents. Those respondents, who had been appointed after 3rd December, 1997 also cannot be denied the same pay scale as they are doing the same work and are posted in the same department. The order dated 3rd December, 1997 had not held that the relief granted in the said order will not be applicable to those Packers who would be appointed after that date. Rather it had been held that it would be applicable to all the Packers who are similarly placed. To assess the similarity between the applicants of the O.A No. 2724 of 1992 and the present respondents, what is to be taken into consideration is as to what is their designation, what work they are doing and in which department they are posted. „Equal pay for equal work‟ cannot be denied to some of the respondents on the ground that they were appointed after the decision of the earlier original application on 3rd December, 1997. The said order had been challenged in the High Court WP(C) 3225 of 2007 Page 21 of 26 and Supreme Court and had been upheld by these Courts. Hence, the decision of the Tribunal dated 3rd December, 1997 will not be applicable to those Packers of Foreign post office who would be appointed after that date cannot be inferred in the facts and circumstances and under law.
28. For those respondents who were appointed after 3rd December, 1997, the relief cannot be denied as they are also the Packers in the Foreign Post Office and also for the reason that they are discharging similar work as the Packers in the other Government departments, the pay scale recommended by the 4th Central Pay Commission cannot be denied to them on sole the ground that they were appointed as Packers after 3rd December, 1997. What is relevant is whether they were discharging work similar to the Packers who were granted relief by order dated 3rd December, 1997 and not that they were not appointed prior to 3rd December, 1997.
29. From perusal of the Recruitment Rules, 1970-2002-2005, it is apparent that they are in two parts viz. one pertaining to Circle and Administrative Offices and other pertaining to Subordinate Offices. In the Recruitment rules of 1970 & 2002 (revised) there are entries for the post of Packers in Circle and Administrative Offices as well as in Subordinate Offices. Though the recruitment rules were amended on WP(C) 3225 of 2007 Page 22 of 26 24th February, 1989, however, those amendments related to peripheral employees working in Subordinate Offices to join the main stream and this amendment does not relate to whether Packer was a post or not under the rules. By amendment of the recruitment rules in 24th January, 2005, the post of Packers was removed and a new post of Mail Peon was introduced in the Circle and Administrative Offices as well as in Subordinate Offices. The learned counsel for the petitioner in the circumstances has not been able to deny that the post of Packers under the Department of Post continued till 24th February, 2005 when it was abolished.
30. The Tribunal in its order dated 3rd December, 1997 in OA No.2724/1992 had held that Packers in the Department of Post are also skilled labourers in terms of the recommendation of the 4th Central Pay Commission. The Tribunal had also noted that the 4th Central Pay Commission had not insisted on ITI Certificate or diploma as a pre condition to a particular category of employees being declared as skilled labourers. This finding of the Tribunal attained finality and in the circumstances, it cannot be inferred by any stretch of arguments that the respondents, who are Packers in the Department of Post, are different from the Packers in OA No.2724/1992. If the applicants in OA No.2724/1992 were entitled for pay according to the recommendation of 4th Central Pay Commission and the replacement pay scale according to WP(C) 3225 of 2007 Page 23 of 26 the recommendation of the 5th Central Pay Commission, then there cannot be two pay scales in the same department, one for those applicants and the association of applicants who had filed an OA No.2724/1992 decided on 3rd December, 1997 and the other applicable to the present respondents.
31. The Tribunal while passing the impugned order dated 20th November, 2006 also noted that the educational qualification prescribed for Packers in the Department of Post is primary level, only on the basis of the pleas of the petitioner, however, the Recruitment Rules of 1970 as well as 2002 prescribe middle school standard passed, or its equivalent examination from a recognized school. Before the Tribunal, the petitioner had contended that similar qualification is prescribed by the Ministry of Railways. If that be so then the Packers in the Department of Post could not be differentiated with the other departments, for which recommendations were made by the 4th Central Pay Commission. In the circumstances, the recommendations of the 4th Central Pay Commission to the packers of the Department of Post and the replacement scale as recommended by the 5th Central Pay Commission cannot be faulted on any of the grounds urged on behalf of the petitioner.
WP(C) 3225 of 2007 Page 24 of 26
32. The Tribunal has also held that the amendment made to the Recruitment Rules by gazette Notification dated 24th January, 2005 shall have effect from the date of its issue, in the absence of any stipulation to the contrary which fact has not been denied by the learned counsel for the respondents. It is also apparent that the amended rules effected from 24th January, 2005 are not applicable to the respondents as they have been appointed as Packers prior to that date.
33. In the circumstances, the learned counsel for the petitioner has not been able to urge any ground on the basis of which it can be held that the order of the Tribunal dated 20th November, 2006 passed in OA No.164/2005 suffers from any illegality, irregularity, or such perversity which will require interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. No other grounds have been urged on behalf of the petitioner except those which are dealt hereinbefore.
34. Therefore the writ petition is without any merit and it is dismissed. Event though, the Tribunal in its order dated 3rd December, 1997 in OA No.2724/1992 had categorically held that the said relief granted could not be denied by the petitioner to other similarly placed packers, so that individual packers may not have to approach the Court WP(C) 3225 of 2007 Page 25 of 26 separately for the same relief, the petitioner, however, denied the same relief to the respondents without any cogent or legally sustainable reasons. In the circumstances, the petition is dismissed. All the respondents shall be entitled for a cost of Rs.1,000/- each.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
JULY 29, 2011 „k‟ WP(C) 3225 of 2007 Page 26 of 26