Delhi High Court
Union Of India (Uoi) Through Its ... vs D.K. Sinha And Ors. on 19 August, 2002
Author: Mukul Mudgal
Bench: Mukul Mudgal
JUDGMENT Anil Dev Singh, J.
1. By this writ petition, the petitioner, Union of India challenges the order of the Central Administrative Tribunal, Principal Bench dated 11th February, 2002 in O.A.No. 1332/99. By that order, the Central Administrative Tribunal directed the petitioner to declare the respondents as Data Processing Assistants, Grade-III in the scale of Rs. 1600-2660 w.e.f. 1.1.1986 or the date of their joining whichever is later with all consequential benefits including payment of arrears, if any, and revised scale consequent to the recommendation of the 5th Pay Commission and consideration for promotion to higher posts. The tribunal also directed that the order be implemented within four months from the date of receipt of the copy of the order. The facts giving rise to the petition are as follows:-
2. The respondents, who are seven in number, entered the service of the petitioner as Data Processing Assistants (for short 'DPA')Tape Librarians on various dates from 1987 to 1990. They were placed in the grade of Rs. 1200 to Rs. 2040 as was admissible to DPA/Tape Librarians. It needs to be emphasised that all the respondents were appointed before July 2, 1990, a date which has a bearing on the merits of the case.
3. On July 2, 1990, the Government of India issued a notification whereby it redesignated the Data Processing Supervisors in the scale of Rs. 1,400-2,300 as Data Processing Assistants in the scale of Rs. 1,600-2,660 rather than in the revised scale of Data Processing Supervisors of Rs. 2,000-3,200. Similarly, Data Processing Assistants in the scale of Rs. 1,200-2,040 were redesignated as Data Entry Operators Grade 'B' in the scale of Rs. 1,350-2,200 rather than in the revised scale meant for Data Processing Assistants i.e. Rs. 1,600-2,600. The order dated July 2, 1990, besides the aforesaid posts, redesignated several other posts as well.
4. We may mention that much before the issuance of the order dated July 2, 1990, the Fourth Pay Commission (1986) felt that all matters concerning data entry and data processing staff be decided by an expert body. On the recommendation of the Fourth Pay Commission, a Committee known as Dr. Seshagiri Committee went into the question of revision of pay-scales and restructuring electronic data processing posts on various departments of the Government. Thereafter Dr. Seshagiri Committee appointed a sub-committee to go into certain aspects of the matter. Dr. Seshagiri Committee endorsed the recommendations of the sub-committee on May 15, 1987 and made its recommendations accordingly. On September 11, 1989, the Government of India accepted the recommendations of the Committee with slight modifications and accordingly issued the requisite order. It may be pointed out that all the Ministries and Departments with Electronic Data Processing posts were directed to review the designation, pay-scales and recruitment qualifications in accordance with the rules. The order did not expressly or by necessary implication indicate that persons recruited as Data Processing Assistants under the rules were to be redesignated as Data Entry Operators. Model rules were prepared by the Departmental of Personnel on February 13, 1990 in keeping with the recommendations of Dr. Seshagiri Committee as modified by the Government order dated September 11, 1989. The trouble started when the petitioner changed the designation of the respondent from Data Processing Assistants to Data Entry Operators pursuant to the order of the Government of India dated July 2, 1990. The respondents not being satisfied with their placement made a representation but the same was rejected by the petitioner on September 19, 1997.
On June 1, 1999, the respondents approached the Central Administrative Tribunal by means of an original application being O.A. No. 1332/99 with the prayer to refix the pay-scale of the respondents in the higher scale of Rs. 1,600-2,660 instead of Rs. 1,350-2,200. The Tribunal relying upon the decisions of the Supreme Court in Chandraprakash Madhavrao Dadwa and Ors. v. Union of India and Ors. [Civil Appeal No. 500/98], JT 1998 (6) S.C.C. 602, and in Kamlakar and Ors. v. Union of India and Ors. 1999 (4) S.C. 486, directed the petitioner to declare the respondents as Data Processing Assistants Grade III in the scale of Rs. 1,600-2,600 w.e.f. January 1, 1986, or from the date of their joining, whichever is later, with all consequential benefits including payment of arrears, fitment in revised scale consequent to the recommendations of the Fifth Pay Commission etc. The petitioner, union of India, aggrieved by the order passed by the Tribunal has filed the instant writ petition.
6. We do not find any infirmity in the impugned order of the Tribunal which is based upon the decision of the Supreme Court in Dadwa's case (supra). In Dadwa's case (supra) the Supreme Court had an occasion to deal with the notification of the Government of India dated July 2, 1990. The Supreme Court while dealing with the aforesaid notification as modified by a subsequent order March 16, 1998 observed as follows:-
"30. The order dated 2.7.90 does not by itself assign any reason whatsoever as to why,- at any rate, in the NSSO where there were although two streams, - the Data Processing Supervisors should be redesignated as Data Processing Assistants or as to why those like the appellants who were directly recruited as Data Processing Assistants in NSSO should be redesignated as Data Entry Operators Grade B. It was only stated that the order was being issued pursuant to the orders of the Department of Expenditure, Ministry of Finance dated 11.9.1989 and therefore, revision of designations and scales of pay was being undertaken. Further there is a clear error in this order dated 2.7.90 when it says in para 4 as follows:
"In the meantime, the existing provisions of the relevant recruitment will continue to apply except in respect of designations and pay scales which will stand revised as indicated in para-1 above.
The above observations, in our view, are not correct in law. The executive orders cannot conflict with the statutory rules of 1977.
xxxxx Reasons as to why 2.7.90 and 16.3.98 orders are arbitrary and illegal.
We have made a detailed survey of the rules and orders right from 1973 is so far as they are relevant for this case. In the light of the above, the it is now necessary to give our reasons as to why the two impugned orders cannot be held valid.
(1) To start with, there appears to us that so far as the NSSO was concerned, there were two sets of rules one for the Data Entry Stream and another for the Data Processing stream. In the 1973 Rules for the Data stream, there were posts of Computers, Machine operators and key Punch operators and the number of posts was fairly large namely, 225, 68 and 80 respectively. The 1977 rules, applied to the Data Processing stream at the entry level, namely, to the posts of Data Processing Assistants, which were 88 in number. Then there were 12posts of Data Processing Supervisors under the 1978 Rules to be filled in also by promotion of the Data Processing Assistants.
Another set of Rules of 1978 related to 15 posts of Data Processing Superintendents.
In our view, therefore, so far as the NSSO was concerned right from 1973-1977, there was a definite and clear demarcation of the Data Entry stream and the Data operation stream. In the present case, the 48 appellants who were recruited as Data Processing Assistants were also confirmed as such by orders dated 25/28-8-1989 as per Annexure B to the review application with effect from 4.8.89.
(2) The appellants did satisfy the qualifications meant for these posts at the time of recruitment and were recruited accordingly. It might be that the Dr. Seshagiri Committee and the 11.9.89 order of the government and the Model Rules of 13.2.90 made slight changes in the qualifications, namely, that apart from the qualifications, namely, that apart from Degree, they should have a certificate/diploma in Computer application or knowledge in certain computers processes to be subjected to a test, at the stage of recruitment. In our view, such a change in qualifications could be made so far as future recruitment was concerned and could not affect those who were already recruited. To now say that the appellants did not have the Diploma/certificate or had not been recruited on the basis of tests would, in our opinion, amount to imposing these qualifications, with retrospective effect and such an action, even if made by rules, would be arbitrary. If made retrospective, and if the earlier recruitment or confirmations in posts were to be disturbed that would also be arbitrary. These would clearly violate Articles 14 and 16 of the Constitution of India.
(3) In the affidavit of the Union of India filed in the review petition, it was stated that in the functions of Data Processing Assistants, referred to in the Proceedings of the department of Statistics dated 29.6.90 and in the enclosure No. 12018/1/96 dated 16.3.98, there were at at least 7 functions which were in addition to the functions to be performed by those who were now redesignated as Data Entry operators Grade B. Assuming it to be so, the mere fact that certain additional functions were to be performed by the Data Processing Assistants is no defense for lifting them from their confirmed posts and shifting them into the Data Entry stream.
(4) More importantly, the appellants could not be said to be merely performing Data Entry work from 1977 or thereafter up to 2.7.90. We have shown that there were a large number of posts in NSSO to which recruitment could be made under 1973 Rules for Data Entry work viz. Computer, Machine operator & Punch Key operators. Assuming that the appellants who were recruited as Data Processing Assistants were also entrusted with certain Data Entry work, that would not mean that the appellants who were recruited as Data Processing Assistants were recruited for Data Entry work only. Such a contention, if accepted, would result in the obliteration of the distinction in recruitment under the 1973 Rules and recruitment under the 1977 Rules. Such a view cannot, therefore, be accepted.
On this factual issue, the following averments in the affidavits are important. It was clearly stated by the appellants in para 4.6 of their affidavit filed on OA before the Tribunal as follows:
"Para. 4.6...the applicants submit that because of rotation of the Data Processing Assistants for doing the three trades which were earlier being done by Computer, Key Punch operator and Machine operator each of the Data Processing Assistants has been doing the work of data processing. In fact data processing is an integral part of the job of Data Processing Assistants employed by the organisation".
In the counter filed by the Union of India before the Tribunal, it was admitted:
"It is submitted that the statements in para 4.6 of the application are admitted to the extent that Data Processing Assistants (DEO, Gr.B.) are assigned work entailing data processing and other activities apart from data entry by rotation-basis."
But when we come to the affidavit of the Union of India filed in this Court on 6.6.1997 we find following stand taken in para 7.3:
"It will be seen that the very basis of recruitment of the former DPAs, including the petitioners, was for data entry work and not for data processing which requires higher skills and qualifications."
Our conclusion from the above facts and statements is that the Union of India cannot be permitted to say that the appellants were recruited as Data Processing Assistants for doing data entry work.
(5) The Dr. Seshagiri Committee was clear that the new qualifications now suggested should not be made applicable to existing employees. the order of the Finance Department dated 11.9.89 also stated that the existing Rules have to be kept in mind. the Vth Pay Commission also suggested a review of the designations. This was not done properly.
(6) It is no doubt true that in the Data Entry stream, there are now several grades A,B, C,D. E (grades I to V); it is true that though grade IV in same scale of Rs. 1350-2200 is made applicable to Data Processing Assistants, there are also two higher grades in scales of Rs. 1440-2300/1600-2660 and Rs. 2000-3200.
But it is no satisfaction to the appellants that as Data Entry operators in Rs. 1350-2200 scale they can get promotion from stage to stage, up to the grade in the scale of Rs. 2000-3200. The fact remains that scale can be reached only after passing through two other grades.
(7) The affidavit of the Union of India dated 6.6.97 repeatedly mentions that it has become necessary to redesignate the appellants (i.e. Data Processing Assistants) as Data Entry operators inasmuch as the appellants do not possess certain skills attributed to the post of Data Processing officers for performing the various additional functions required of them. It is stated that in addition list of functions of Data Entry operators grade B, the new Data Processing Assistants under the 2.7.90 order are required to perform 7 other functions which are assigned to the date processing orders in the function now list in the orders DOS/EDP/90 dated 26.9.90 as well as the function referred to in the enclosure to the order No. 12018/1/96-ANN.IV dated 16.3.98.
Assuming that some functions now expressed in the orders dated 2.7.90 or 16.3.987, are, according to the Union of India, not capable of being performed by the appellants that does not mean that they can be shifted from the Data Processing stream to which they have been recruited in 1977 or thereafter - and in which Posts they have been confirmed in 1989-to the other stream of Data Entry.
(8) In fact, removing them from their confirmed posts of Data Processing Assistants might in law even offend Article 311 of the Constitution of India.
(9) We have shown while referring to the orders dated 2.7.90 and 16.3.98 above that there was non-application of mind by the authorities to several important factual and legal aspects when the redesignation procedure was adopted suddenly. We reiterate those reasons.
(10) We may also mention at this stage the stand taken by the respondents in the counter affidavit filed on behalf of the Union of India by Shri R. Ravi, working as Under Secretary in the Ministry of Planning, Department of statistics. In the said affidavit, at page 66 of Volume 1 in these review proceedings, the Deponent in paragraph 7.1 has observed that "the Government of India after considering the Seshagiri Committee Report prescribed they pay scale for EDP posts in the various Ministries and rationalised their pay structure. Accordingly, vide order dated 2.7.1990, this Department (NSSO) redesignated the posts and notified the change as follows:
"For Data Processing Assistant the revised designation as shown to be DEO Gr. B Rs. 1350-2200 while for Data Processing Supervisor the revised designation is shown as DPA Rs. 1600-2660.
x x x x x To put it in a nutshell, the change in the essential qualification made in 1990 or 1998 or the additional functions now required to be performed by the appellants could not retrospectively affect the initial recruitment of appellants as Data Processing Assistants nor their confirmation in 1989. Recruitment qualifications could not be altered or applied with retrospective effect so as to deprive the recruitees of their right to the posts to which they were recruited nor could it affect their confirmations.
In our view, the above, reasons are more than sufficient to meet the various points raised by the Union of India in its counter, which we have set out above.
For all the above reason, 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, ultravires 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 grade 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."
7. The issue to the limited extent was again considered by the Supreme Court in Kamlakar's case (supra) wherein it was held as follows:-
"12. We have considered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale -which were matters common to all of them before the impugned order of the Government of India was passed on 2.7.1990, they any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondent's contention. We have examined the record and the common points arising in this case and those in civil appeal which arose out of Special Leave Petition No. 16646 of 1995 and we are unable to find any lawful distinction between the appellant and those in the other appeal which has been allowed."
8. In view of the decision of the Supreme Court in Dadwa's case (supra) we do not see any merit in the writ petition. The order of the Tribunal cannot be faulted.
9. According, the writ petition fails and is hereby dismissed.