Kerala High Court
Union Of India vs All India Naval Clerks Association on 8 August, 2019
Equivalent citations: AIRONLINE 2019 KER 352, 2019 LAB IC 3989
Author: Ashok Menon
Bench: V.Chitambaresh, Ashok Menon
"C.R."
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE ASHOK MENON
THURSDAY, THE 08TH DAY OF AUGUST 2019 / 17TH SRAVANA, 1941
OP (CAT).No.1597 OF 2012(Z)
AGAINST THE ORDER/JUDGMENT IN OA 314/2010 DATED 21-10-2011 OF
CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH
PETITIONERS/RESPONDENTS:
1 UNION OF INDIA
REPRESENTD BY THE SECRETARY,
MINISTRY OF DEFENCE, NEW DELHI.
2 FLAG OFFICER COMMANDING-IN-CHIEF,
SOUTHERN NAVAL COMMAND, KOCHI-4.
3 ADMINISTRATIVE OFFICER GRADE-II
CIVILIAN ADMINISTRATIVE OFFICE,
HEADQUARTERS,SOUTHERN NAVAL COMMAND,KOCHI-4.
BY ADVS.
SRI.P.PARAMESWARAN NAIR, ASG OF INDIA
SRI.P.VIJAYAKUMAR, ASG OF INDIA
RESPONDENTS/APPLICANTS:
1 ALL INDIA NAVAL CLERKS ASSOCIATION,
REPRESENTED BY GENERAL SECRETARY,
T.M.MATHEW, LDC, HEADQUARTERS,
SOUTHERN NAVAL COMMAND, KOCHI-4.
2 K.S.BABU,
ASSISTANT, HEADQUARTERS,
SOUTHERN NAVAL COMMAND TYPE 3C-III
DOWSON VIHAR, THYKOODAM(P.O), VYTTILA,
COCHIN-36.
OP(CAT) No.1597/2012
2
3 T.K.RAMAVATHY,
UDC, AGED 55 YEARS, W/O.LATE E.S.RAJENDRAN,
REVATHY, 29/5889, PANAMPILLY NAGAR, KOCHI-36.
4 M.J.MARTHA,
UDC, NAVAL SHIP REPAIR YARD,
NAVAL BASE,KOCHI.
BY ADVS.
SRI.S.RADHAKRISHNAN
SRI.S.RAJ MOHAN
SMT.V.M.RUSHDA
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 02.08.2019, THE
COURT ON 08.08.2019 PASSED THE FOLLOWING:
OP(CAT) No.1597/2012
3
JUDGMENT
Ashok Menon, J.
Are the Assistants in the Indian Navy, who form the All India Naval Clerks Association, entitled to pay parity with Assistants in the Central Secretariat Service(CSS), is the question that arises for consideration before for us in this Original Petition filed by the Union of India challenging the favourable order granted to the applicants in O.A.No.314/2010 by the Central Administrative Tribunal, Ernakulam Bench (for short "the Tribunal") vide impugned order dated 21.10.2011.
2. The facts in brief are thus:
The applicants allege discrimination against them by the Government from the days of 4 th Central Pay Commission (CPC). It is alleged that the qualification required for employment as Assistants in the Navy and in the CSS and other lower formations is the same. The method of recruitment for appointment are also similar. The quantity and quality of the work done by OP(CAT) No.1597/2012 4 both are also comparable. Yet they have been discriminated against, is the grievance of the applicants.
3. Our attention was drawn to the pay structure of both these posts, as it existed from 1971 onward. The scales of the Assistants and Stenos in CSS in 1971 was Rs.210-530, which was the same for the Assistants & Stenos in other subordinate services. Consequent to the 3rd CPC, the pay scales of Assistants in CSS was fixed at Rs.425-800, while Assistants in lower formations were given the scale of Rs400-700. Subsequent to the 4th CPC in 1986, the disparity in scales continued at Rs.1400-2600 and Rs.1400-2300 respectively. Representations were made, and Justice D.Bhaskaran Commission was appointed to consider the quality and quantity of the work done by Assistants in other lower formations in comparison to the Assistants in the CSS and other subordinate offices. The recommendation was made in favour of parity in the pay scales. The Union Government accepted Justice D.Bhaskaran Commission report on 04.05.1990 and brought OP(CAT) No.1597/2012 5 about the parity in the scales. However,soon thereafter, the Government of India, Ministry of Personal, vide O.M.No.2/1/90-CS.IV dated 31.07.1990 revised the pay scales of Steno Grace-C and Assistants in the CSS from Rs.1400-2600 to Rs.1640-2900 with effect from 01.01.1986. This hike was not given to the Assistants in the subordinate offices and the lower formations and their pay scale remained at Rs.1400- 2600. O.A.No.144-A/93 was filed before the Principal Bench of the Tribunal and vide order at Annexure A8 dated 19.01.1996 it was held that there could not be any difference in the pay scales of the Assistants working in the CSS and the Assistants working in lower formations and granted identical pay scales to both these groups.
4. It was on 09.10.1997 that the cadre of Assistants was formed in the Navy. Before which, they were Superintendents Grade II. The Principal Bench of the Tribunal in O.A.No.527/1999 vide its order dated 28.09.1998 (P.K.Sehgal & others vs. Union of India & others, (1999) 1 ATJ 1982), followed the same view as in OP(CAT) No.1597/2012 6 O.A.No.144-A/93 and allowed the application bringing about parity in the pay scales. In O.A.No.981/1994 again the Principal Bench, New Delhi followed the same stand and allowed the claim of the Assistants in different lower formations, as per Order dated 17.03.1999 at Annexure A9. Similar view was also taken by the Gauhati Bench in O.A.No.63/1997 at Annexure A10. One of the applicants made Annexure A5 representation before the 2 nd respondent requesting for the pay scale of Rs.1640-2900 to them also. Pay parity was restored.
5. The pay revision consequent to the 5th CPC however restored the disparity in the pay scales between the Assistants in the CSS and the lower formations was made. The applicants made a representation, which was not heeded to. The applicants thus approached the Tribunal by filing O.A.No.32/2002, which was dismissed vide order dated 10.01.2004 at Annexure A2. Aggrieved by this, the applicants approached this Court by filing W.P.(C) No.33684/2004 and vide Annexure A3 judgment dated 22.10.2007, a Division Bench of this Court directed the applicants to OP(CAT) No.1597/2012 7 make a fresh representation before the 2nd respondent- Union of India and the 2nd respondent was directed to consider the claim of the applicants for granting the scale of pay enjoyed by the Assistants in the CSS and other lower formations to the Assistants in the Navy. Vide order at Annexure A1 dated 13.03.2009 the Integrated Head Quarters of Ministry of Defence rejected the request made by the applicants stating that the Assistants in the Organisations, outside the Secretariat are not entitled to get the pay scales of Assistants in the Secretariat Organisations.
6. This compelled the applicants to approach the Tribunal once again with O.A. No. 314/2010. After considering the contentions raised on both sides, the Tribunal vide the impugned order at Ext.P1 allowed the application declaring that the applicants are to be treated alike with that of Assistants in other lower formations and that their pay scale be revised as in the case of applicants in Annexures A8, A9 and A10 and to issue necessary orders within a period of three months from the date of receipt of the order. OP(CAT) No.1597/2012 8
7. We heard the learned A.S.G. Shri P.Vijayakumar. Advocate Shri Aditya Thejus Krishnan also argued in defence of the impugned order very effectively.
8. The learned A.S.G. relied on a number of decisions in support of his contention that the pay revision in the scales fixed by the Government cannot be interfered with by the Tribunal or the Court. In Secretary, Finance Department & others v. West Bengal Registration Service Association & others, 1993 Supp.
(1) SCC 153, considering the challenge to the pay revision by the Sub Registrars, the High Court had allowed the prayer to interfere with the pay scale granted by the Government. The Hon'ble Supreme Court setting aside the finding of the High Court, held that the executive function, undertaken by expert body like Pay Commission whose recommendations entitled to great weight though not binding, cannot be interfered by the Court in judicial review since it is a complex matter involving job evaluation, equation of posts and salaries, reduction of number of pay scales which require consideration of various factors, not OP(CAT) No.1597/2012 9 ordinarily called for, unless there is unjust treatment by arbitrary State action or inaction.
9. In Union of India & another V. P.V.Hariharan & another, (1997) 3 SCC 568, the Honourable Supreme Court reiterating the scope of judicial review in the matter of interfering with the pay scales fixed by the Government held thus:-
"Quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a pay Commission. Change of pay scale of a category has cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such changes. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales."
10. In State of Haryana & another v. Haryana Civil Secretariat Personal Staff Association, (2002) 6 SCC 72, it was held thus:
"The High Court has ignored certain settled principles of law for determination of the claim to parity of pay scale by a section of government employees. While making copious reference to the principle of equal pay for equal work and equality in the matter of pay, the High Court overlooked the position that the parity sought by the petitioner in the case was with employees having only the same OP(CAT) No.1597/2012 10 designation under the Central Government. Such comparison based merely on designation of the posts was misconceived. The High Court also fell into error in assuming that the averment regarding similarity of duties and responsibilities made in the writ petition was unrebutted. Even assuming that there was no specific rebuttal of the averment in the writ petition that could not form the basis for grant of parity of scale of pay as claimed by the respondent. The High Court has not made any comparison of the nature of duties and responsibilities, the qualifications for recruitment to the posts of P.As. in the State Civil Secretariat with those of P.As. of the Central Secretariat."
Again in Union of India v. Arun Jyoti Kundu & others, (2007) 7 SCC 472, it was held that Administrative Tribunal or High Court cannot interfere with such policy matters of the Government and issue directions to the Government. In S.C.Chandra & others v. State of Jharkhand & others, (2007) 8 SCC 279, the Honourable Supreme Court again considering the powers of the Court and the Tribunal in interfering with fixation of pay held thus:
"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. 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. Granting pay scales is a purely executive function and hence the court should not interfere with the same. 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 OP(CAT) No.1597/2012 11 practical difficulties. The courts must realise 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. Hence the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has already hardly been ever applied in recent decisions."
11. In State of Haryana & others v. Charanjit Singh & others, (2006) 9 SCC 321, the Honourable Supreme Court considering the parity in employment held that party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. The court must satisfy in each case that the burden of proving that the work and conditions are identical and equal, is discharged by the aggrieved employee.
12. In the impugned order of the Tribunal reliance was placed on Annexure A10 Order of Gauhati CAT, the learned A.S.G. points out that the said decision of Gauhati Tribunal was challenged before the Honourable Supreme Court in Union of Inida & others v. Hiranmoy Sen & others, (2008) 1 SCC 630, wherein it was held that judiciary must exercise self-restraint and not OP(CAT) No.1597/2012 12 encroach into the executive or legislative domain and the appeals were allowed upsetting the findings of Gauhati Tribunal.
13. In the impugned order, the Tribunal has referring to Annexure A3 decision of this Court in W.P.(C) No.33648/2004, observed thus:
"3. xx xx After referring to the fact situation, the Hon'ble High Court held that nature of duties of the petitioners, who are Assistants in the Navy are equivalent or comparable with the nature of duties in other lower formations and therefore they are entitled to get the same scale of pay enjoyed by other Assistants, is a matter which should be considered at the first instance by the Government. In view of the matter, the applicants were asked to submit the representations before the Government and directed the Government to dispose the matter within one month from the date of the judgment. It is also directed that in that event the said respondent will consider the claim of the petitioners for granting the scale of pay presently enjoyed by the Assistants in the CSS and other lower formations to the Assistants in the Navy. xx xx "
The above extracted finding of the Tribunal would give an impression that in Annexure A3 judgment, the Division Bench of this Court had held that the nature of duties of the posts were equal or comparable. What the Division Bench actually held was thus:
"6. We feel that whether the nature of duties of the petitioners who are Assistants in the Navy are equivalent or comparable with the nature of duties in the other lower formations and therefore they are entitled to get the same scale of pay enjoyed by other Assistants, is a matter which should be considered at the first instance, by the Government. xx xx"OP(CAT) No.1597/2012 13
14. There is no finding in Annexure A3 judgment to the effect that the nature of duties of the Assistants in Navy, are equivalent or comparable with the nature of duties in other lower formations. This matter was directed to be examined by the Government while considering the representations made by the applicants.
15. Advocate Shri Aditya Thejus Krishnan in support of the impugned order of the Tribunal argues that the nature of duties of Assistant in CSS and in other lower formations were already found to be equal and comparable in the specific Commission appointed for the purpose by the Government, headed by Justice D.Bhaskaran. Hence, that fact need not be considered anew in the instant case. The learned Counsel also relies on the decision in Essen Deinki v. Rajiv Kumar, (2002) 8 SCC 400, to contend that the scope of interference with the finding of the Tribunal in a writ under Article 227 of the Constitution is limited. The Hon'ble Supreme Court held thus :
"Exercise of jurisdiction under Article 227 of the Constitution is limited and restrictive in nature. It is so exercised in normal circumstances for want of jurisdiction, errors of law, perverse findings and gross violation of natural justice, to name a few. It OP(CAT) No.1597/2012 14 is merely a revisional jurisdiction and does not confer an unlimited authority or prerogative to correct all orders or even wrong decisions made within the limits of the jurisdiction of the courts below. The finding of fact being within the domain of the inferior tribunal, except where it is perverse recording thereof or not based on any material whatsoever resulting in manifest injustice, interference under the article is not called for."
16. Considering the history of the pay revisions concerning the pay scale of Assistants in the lower formations and the pay scale of Assistants in CSS, it is seen that even prior to 4th CPC, there was a difference in the pay scales of the Assistants in CSS and that of lower formations, as pointed out by us earlier. It is subsequent to the 4th CPC that the matter was referred to Justice D.Bhaskaran Commission, which equated the posts and duties and on 04.05.1990 the Government, on acceptance of the award, accepted it and the scales in both CSS and lower formations were equated at Rs.1400-2600. But in between the 4th CPC and 5th CPC, the pay scales of Assistants in CSS was again revised and enhanced to Rs.1640-2900 with effect from 01.01.1986, which enhancement was not given to the Assistants in the lower formations. That was challenged in P.K.Sehgal's case (supra), which accepted OP(CAT) No.1597/2012 15 the objections raised and the Assistants of both CSS and lower formations was equated once again at Rs.1640-2900. But consequent to the 5th CPC, the pay scale of Assistants in CSS was fixed at Rs.5500-9000, whereas the pay sale of Assistants in lower formation was only Rs.5000-8000. In support of the argument that the duties and functions are similar, the learned Counsel would again point out to the 6th CPC, which granted the same pay scale of pay band-2 with grade pay of Rs.4200/- to Assistants in both CSS and other lower formations.
17. We are therefore concerned only with the disparity in the pay scale granted to the applicants in the 5th CPC. It is true that the pay scale granted to the Assistants consequent to the 4th CPC was revised. But that was in consequence of a specific study conducted by Justice D.Bhaskaran Commission, which was accepted by the Government in equating the pay scales. During the 5th CPC, the Commission constituted for that purpose is supposed to have again studied the quality and quantity of work of Assistants in CSS and other OP(CAT) No.1597/2012 16 lower formations afresh, and arrived at a conclusion that there must be disparity in the pay scales.
18. Relying on the catena of decisions referred to above, we are of the opinion that judiciary must exercise self-restraint and not encroach into the executive or legislative domain of pay fixation, unless there is a glaring disparity and injustice pointed out. This Court cannot, without conducting any study, direct revision of pay scales of Assistants belonging to the Navy to bring it at par with the Assistants belonging to the CSS or other lower formations. We are unable to agree with the finding in the impugned order of the Tribunal, which needs to be set aside.
In the result, the Original Petition is allowed and the impugned order of the Tribunal in O.A.No.314/2010 is set aside. No costs.
Sd/-
V.CHITAMBARESH JUDGE Sd/-
ASHOK MENON
dkr JUDGE
OP(CAT) No.1597/2012
17
APPENDIX
PETITIONERS EXHIBITS:
EXHIBIT P1 COPY OF THE ORDER PASSED BY THE CENTRAL
ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN O.A.NO.314 OF 2010 DATED 21.10.2011.
EXHIBIT P2 COPY OF O.A.NO.314 OF 2010 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.