Central Administrative Tribunal - Delhi
Shri Ajay Kumar Sharma (Typist) vs Union Of India & Ors on 25 March, 2011
CENTRAL ADMINISTTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI TA NO.21/2010 NEW DELHI THIS THE 25th DAY OF MARCH 2011 HONBLE DR. RAMESH CHANDRA PANDA, MEMBER (A) HONBLE MR. A.K. BHARDWAJ, MEMBER (J) 1. Shri Ajay Kumar Sharma (Typist) S/o Shri Rattan Lal Sharma R/o B5-135C, Shalimar Bagh, Delhi 2. Ms. Neelu Thadani (Stenographer) D/o Shri M. Sahani R/o A-102, Karan Apartments, Alaknanda, New Delhi 3. Ms. D Padmawati (Stenographer) D/o E.V.L. Prasada Rao R/o 49-D, Pkt-A, Mayur Vihar-II, Phase-II, Delhi-91 4. Shri K. Mahalingam (Assistant) Last Shri S. Krishnamurty R/o 640, C.F.I, Pradeep Apartments Shalimar Garden-Extn-I U.P. Ghaziabad. 5. Shri Mahender Sharma (Assistant) Last Shri Suraj Bhan H.No.182, B.T.M. Road, Bhiwani 6. Shri Ramesh Kumar Soni (Stenographer) S/o Late Shri Ganesh Soni R/o Plot No.886 Flat No.402, Shalimar Garden Ext.I Sahibabad, Ghaziabad, UP. 7. Shri Jaya Shankar Joshi (Assistant) S/o Shri A.K. Joshi R/o B-20, Shakarpur Delhi-110092. 8. Shri Mohan Singh Shahi (Stenographer) S/o Late Sh. Gopal Singh Shahi 1092, Near Gulazari Lal Public School Alipur, New Delhi 110 036 Applicants (By Advocate: Shri G.D. Bhandari) VERSUS 1. Union of India & Ors. Through the Secretary Ministry of Sports and Youth Affairs, Shastri Bhawan, New Delhi 2. Nehru Yuva Kendra Sangathan Through the Director General East Plaza, Indira Gandhi Indoor Stadium New Delhi- 110002 3. The Director (Pay) Department of Expenditure, Ministry of Finance, Shastri Bhawan, New Delhi. Respondents (By Advocate: Shri Nasir Ahmed and Shri Rana Ranjit Singh) ORDER MR. A.K. BHARDWAJ, MEMBER (J):
The applicants filed WP(C) No.1988/2008 before the Honble Delhi High Court, making the following prayers:-
a) A Writ of Certiorari calling for the records of the case for perusal;
b) A writ of certiorari quashing the office order dated 15.04.2004 (Annexure P-6) issued by the Ministry of Finance, Govt. of India (Respondent No.3), being illegal, arbitrary, unjust and unwarranted and a further writ of mandamus declaring that the same cannot be made applicable to the respondent No.2 organization.
c) A writ of certiorari consequently quashing the letter dated 04.03.2008 (Annexure P-11) issued by respondent No.1 directing the respondent No.2 to cancel with retrospective effect the orders dated 28.02.2007 and 02.03.2007, (whereby the pay scale of the Stenographer Gr.II and Assistant was upgraded from 5000-8000 to 5500-9000) and forthwith recover the financial benefit that have accrued to the employees, being illegal, arbitrary malafide, unjust and without jurisdiction and in violation of the rules, regulations and the principles of equity justice and good conscience.
d) A Writ of Mandamus commanding the respondents to pay the costs of this petition to the petitioner;
e) Any other Writ order or direction, which may be deemed fit and proper on the facts and circumstances of the case and in the interest of justice.
2. In view of the Notification dated 31.12.2008 whereby the provisions of Section 14(3) of the Administrative Tribunals Act,1985 had been extended to the Nehru Yuva Kendra Sangathan (hereinafter referred to as NYKS), Honble High Court directed the aforementioned Writ Petition to be placed before the Registrar, CAT on 15.3.2009. As a result, the said petition was registered as TA No.21/2010 by the Registry of Principal Bench of this Tribunal.
3. The applicants are working as Stenographers Grade II and Assistants in NYKS, which according to the applicants is an autonomous body under the Ministry of Youth Affairs & Sports. As has been submitted by the applicants, the NYKS was incorporated as a Society under the Societies Registration Act, 1860. Referring to order dated 28.2.2007 issued by the Assistant Director (Pers) of NYKS, the counsel for the applicants would contend that pursuant to approval of the Director General, NYKS, the pay scales of Assistants working in the said Sangathan have been upgraded from the pay scale of 5000-150-8000 to the scale of 5500-9000. In terms of the said order, the pay scale of the concerned employees including the applicants was directed to be fixed in the scale of 5500-175-9000 notionally with effect from 01.01.1996 and with actual payment from February, 2003. Making reference to a communication dated 14.5.1998 addressed by Deputy Secretary to the Govt. of India, Ministry of Human Resource Development, Department of Youth Affairs and Sports to the Director General, NYKS, East Plaza, IGI Stadium, New Delhi, counsel for the applicants submits that Government of India had no objection to the revision of pay scales of the Posts, which Sangathan Officers and employees of the NYKS are holding as per the details given in the Annexure-2 of the said communication. The relevant portion of the annexure aforesaid reads as under:-
REPLACEMENT SCALES FOR NEHRU YOVA KENDRA SANGATHAN Sl.NO.
Designation Scales as per approved RRs Replacement Scale
15. Assistant 1400-40-1600-50-2300-60-2600 5000-150-8000
18. Steno.II 1400-40-1600-50-2300 4500-125-7000
4. The applicants further submit that in view of the approval of the Director General, NYKS for upgradation of pay scales of Assistants and Stenographers from the Grade of 5000-150-8000 and 5500-175-9000 and consequent to order dated 28.2.2007 (Annexure P-9) the pay of the applicants (Assistants and Stenographers-II) were revised and fixed vide order dated 02.03.2007 issued by the Assistant Director (Pers), NYKS (Annexure A-10).
5. The counsel for the applicants submits that when the pay scale of the applicants was upgraded after due consideration and with the approval of the Government of India, Ministry of Youth Affairs and Sports suddenly issued a letter dated 04.03.2008 directing the Director General, NYKS to cancel the aforementioned orders dated 28.2.2007 and 02.03.2007 issued by the NYKS with retrospective effect. Ministry of Youth Affairs and Sports also directed the Director General, NYKS to ensure the recovery of excess amount paid to the employees from them and submit the report to the Ministry.
6. By filing the writ petition, the applicants have challenged the aforementioned communication dated 04.03.2008 and order dated 15.4.2004 (Annexure P-6 and P-11). The Respondent No.2 i.e. NYKS filed their reply on 08.10.2008 opposing the petition.
7. In the counter reply filed by the Respondent No.2, it is stated that in terms of order dated 04.03.2008 issued by the Government of India, the OM dated 31.7.90 is not applicable to the applicants. It is further stated on behalf of the Respondent No.2 that as per order dated 14.05.1998 issued by Union of India, the said respondent cannot alter/modify the terms and conditions of service, emolument structure, i.e. scales of pay of posts and service conditions of employees or create new posts without the prior approval of the Government of India. With reference to Annexure P-6 to petition, it is stated on behalf of the Respondent No.2 that DOP&T OM dated 03.01.1991 and Ministry of Finance OM dated 11.12.1990 on the subject of revision of scale of pay of Assistant Grade of Central Secretariat Service (in short CSS) and Grade C Stenographers of Central Secretariat Stenographers Service (in short CSSS) and also the DOP&T OM dated 31.7.1990 were meant exclusively for Assistants/Stenographers of the CSS/CSSS and were not to be extended to autonomous organization etc. Vide its letter dated 07.5.2004, Respondent No.1 ,i.e., Union of India had informed Respondent No.2 that in view of the instructions issued by Respondent No.3 ,i.e., Director (Pay), Department of Expenditure on the subject, proposal for upgradation of pay scales of Assistants and Stengraphers Grade II in NYKS had been rejected. Still Respondent No.2 could issue the orders dated 28.02.2007 and 02.3.2007 (Annexure P-9 and P-10), upgrading the pay scales of aforementioned categories. It is stated on behalf of the Respondent No.2 that in Clause 46.9 of the Vth Central Pay Commission recommendations, it is specifically provided that the pay scale of Assistant in Non-Secretariat Organization should be lower as compared to pay scale of Assistants in the Secretariat. According to the Respondent No.2, the claim of the Applicants for upgradation of pay scale was not covered by OM dated 15.4.2004 (Annexure P-6). To meet the contentions raised by the counsel for the applicants with reference to the orders of Honble Delhi High Court (Annexure P-7 and P-8), it is contended on behalf of Respondent No.2 that in the said case Central Government and Ministry of Finance did not wish to file the counter affidavit and ICSSR did not oppose the claim of the applicants in the said petition (Annexure P-7 and P-8).
8. Placing reliance upon various decisions of Honble Supreme Court, it is stated on behalf of respondents that to determine the claim of the applicants for equal pay for equal work, this Court would not be competent inasmuch as the high constitutional principle of separation of power between three organs the State would be disregarded. A separate counter reply dated 28.2.2009 has been filed on behalf Respondents No.1 and 3. The said respondents have also opposed the petition raising the same contention, as have been raised by Respondent No.2. In view of the aforementioned contentions raised by the parties and they are placed on records, following proposition crop up for our consideration:-
(i) Whether the Assistants/Stenographers working in autonomous organization are entitled to the benefits of revision of scale of pay in terms of DOP&T OM dated 31.7. 1990, which was meant exclusively for Assistants/Stenographers of the CSS/CSSS?
(ii) Whether the respondents would be justified in reversing the orders dated 28.2.2007 and 02.03.2007 issued by NYKS with retrospective effect?
(iii) Whether the arrear of enhanced pay allowed to the applicants on account of revision of their pay from grade of 5000-8000 to 5500-9000 should be recovered from them? and
(iv) Whether this Tribunal can determine the claim of the applicants for equal pay of equal work?
9. As far as the first question is concerned, the issue regarding claim of Stenographers working in subordinate office for pay parity with those working in Central Secretariat came up for determination before Honble Supreme Court in the case of Federation of All India Custom and Central Excise Stenographers (Recognized) and others Versus Union of India and Ors., AIR 1998 SC 1291. In the said case, Honble Supreme Court viewed that the equal pay for equal work is a fundamental right but depend upon the entire work done, and it could not be judged by the mere volume of work. In the said case, Honble Supreme Court further viewed that equation of post and equation of pay is the matter primarily for the Executive Government and the Expert Body, like the Pay Commission, and not for the Court. In the said case, Honble Supreme Court uphold the contention of Union of India holding that the Joint Secretary and Director in the Central Secretariat perform functions and duties of higher responsibility than those performed by the Head of Department. Para-11 of the judgement of Honble Supreme Court in the aforementioned case reads as under:-
In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact. In this light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs.
10. We are bound by the said judgment of the Honble Supreme Court and, accordingly, we accept the decision of Union of India in restricting the benefits of OM dated 31.7.1990 to Assistants/ Stenographers of CSS/CSSS alone.
11. As far as the question No.(ii) ,i.e., of retrospective applicability of letter dated 04.03.2008 issued by the Government of India, Ministry of Youth Affairs and Sports is concerned, normally an administrative decision cannot be applied retrospectively. However, in the present case, the situation is different. In terms of letter dated 14.5.1998, issued by the Government of India, Ministry of Human Resource Development, NYKS, should not have altered/modified the terms & conditions of service, emolument structure i.e. scales of pay of posts and service conditions of its employees or created new posts without the prior approval of the Department of Youth Affairs and Sports in the absence of consultation with the Ministry of Finance. Clause 8 of said letter reads as under:
Nehru Yuva Kendra Sangathan shall not alter/modify the terms and conditions of service, emoluments structure, i.e., scales of pay of posts and service conditions of its employees or create new posts without the prior approval of the Department of Youth Affairs and Sports, in consultation with the Ministry of Finance and will not make any appointment without a duly sanctioned post being available.
12. Further, in term of OM dated 15.4.2004, it was specifically provided that the revised pay scale provided vide DOP&T OM dated 31.7.1990 were meant exclusively for Assistants/Stenographers of the CSS/CSSS. The said OM read as under:-
OFFICE MEMORANDUM Sub: Revision of scale of pay of Assistant Grade of Central Secretariat Service and Grade C Stenographers of Central Secretariat Stenographers Service.
The undersigned is directed to refer to DOPTs O.M. NO.6/6/90-CS-1 dated 3.1.91 and Ministry of Finance O.M. No.744/IC/90 dated 11th December, 1990 on the subject mentioned above and to stated that DOPTs O.M. dated 31.7.90 was meant exclusively for Assistants/Stenographers of the CSS/CSSS and this was not to be extended to autonomous organization etc. However, it has come to the notice of the Govt. that some autonomous organizations have adopted the pay scale of Rs.1640-2900 to their Assistants/Stenographers inadvertently. In some cases, the scale has been extended to autonomous organization on the basis of order of the CAT.
It may be stated in the connection that the Honble High Court of Delhi vide their judgment dated 31.5.2002 and 18.12.2003 have specifically rejected the contention of the employees of autonomous organizations i.e. KVS/NVS, NBT and NIEPA etc. that Assistants/Stenographers of autonomous bodies are entitled for the scale of Rs.1640-2900(pre-revised) w.e.f. 1.1.86. Accordingly, the benefit of higher pay scale is being withdrawn from all the autonomous bodies under the control of Ministry of HRD. The same benefit may also be withdrawn from the employees of other autonomous bodies of Govt. of India as well.
All the Financial Advisors are requested to take urgent corrective measures to withdraw the scale of Rs.1640-2900(pre-revised) from Assistants/Stenographers of autonomous organizations. The amount of Pay & Allowances already paid to the employees on this account may also be recovered.
13. As can be seen from the counter reply filed on behalf of Respondent No.2, the said respondent was specifically informed by the Respondent No.1 vide letter dated 07.5.2004 that the proposal for upgradation of scale of Assistants/Stenographers had been rejected in terms of aforementioned OM dated 15.4.2004 issued by the Ministry of Finance, Department of Expenditure. Despite rejection of proposal of upgradation of pay scale of the applicants by the Government of India, Respondent No.2 issued orders dated 28.2.2007 and 02.3.2007, upgrading the pay of the applicants and fixing their pay in the revised pay scale. In view of the letter dated 14.5.1998, Respondent No.2 could not have altered/modified the terms & conditions of service, emoluments structure, i.e., scales of pay of posts and service conditions of its employees or create new posts without the prior approval of the Department of Youth Affairs and Sports, in consultation with the Ministry of Finance. Thus the orders dated 28.2.2007 and 02.03.2007 issued by the NYKS without prior approval of Department of Youth Affairs and Sports in consultation with the Ministry of Finance were not competent orders at all. Vide letter dated 04.3.2008, Ministry of Youth Affairs and Sports not only specifically disapproved the upgradation of pay scale of the applicants by Respondent No.2 but also directed the cancellation of order of grant of higher pay scale to Assistants/Stenographers in NYKS. Therefore, in the present case, it is not shown, whether any administrative decision is taken from retrospective date or any such decision is applied retrospectively. In fact, the Respondent No.2 which had taken such decision, was not competent to take such decision and when it came to the notice of the authority that without approval of it, the decision could not be taken, it directed the cancellation of the same. A decision taken without following the proper procedure cannot be treated as final administrative decision. In other words, the orders dated 28.2.2007 and 02.3.2007, which were issued without following proper procedure, were directed to be cancelled by the authority without approval of which such an order could not be issued. The principle of retrospective applicability of administrative decision cannot be attracted to the facts of the present case.
14. As far as issue (iii) ,i.e., recovery of overpayment made to the applicants is concerned, such payment could be made to them as a result of incompetent decision taken by the Respondent No.2. In other words, it was not even a mistaken decision by the competent authority. However, we cannot lose the sight of the fact that when the Government servant who is benefited with overpayment for none of his fault can not be made to suffer the agony of sudden recovery of the same. The settled principle on the subject is that if a Government servant is given overpayment on account of administrative error for none of his fault, such overpayment cannot be recovered from him. However, if it is also the Government servant, who contributed to overpayment to him, such payment can be recovered. In the present case, it was not for the applicants to determine that whether the benefits of OM dated 31.7.1990 was to be given to them or not. It was for the competent authority to take such a decision. However, the competent authority i.e. Government of India had also not taken any decision to upgrade the pay scale of the applicants and it was Respondent No.2 which has taken such a decision. The overpayment is made to the applicants not on account of error by the competent authority, but on account of an error committed by incompetent authority. Moreover, there is no material before us to come to the conclusion that whether the overpayment to the applicants was a result of mispresentation by the applicants or not.
15. As far as the question No. (iv) of determination of claim of pay parity of the applicants with Assistants and Stenographers in CSS & CSSS is concerned, the issue has been determined by Honble Supreme Court in the case of State of Haryana & Anr. Versus Haryana Civil Secretariat Personal Staff Association JT 2002 (5) SC 189. In the said judgment, the Honble Supreme Court has viewed that the equation of post and equation of pay is a complex matter and same should be left to be decided by the expert body, unless there is cogent material on records to come to the conclusion that a grave error had been crept while fixing the upgradation for giving equal pay for equal work. Para 9 and 10 of the said judgment read as under:-
9. This Court in the case of Secretary, Finance Department & Ors. v. West Bengal Registration Service Association and Ors., dealing with the question of equation of posts and equation of salaries of government employees, made the following observations :
"We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/ limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broad banding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalization of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/ technical qualifications required, (v) avenues of promotion, (vi) the nature of the duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc, Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. It is presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub-Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the Registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice. (Emphasis supplied)
10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case 'the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of the employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre
16. In view of the aforementioned judgment of Honble Supreme Court, we do not find the present case as a fit case for our interference to determine the claim of the applicants for equal pay for equal work, as no grave error in fixing the pay scale of the applicants is pointed out. As far as contention of the applicants regarding no objection by the Government of India to revise the scale of pay for post of Sangathan Officer and Employee of NYKS in terms of letter dated 14.5.1998 is concerned, it is found that such no objection is for giving revised scales of 5000-8000 and 4500-7000 only. The no objection is not regarding giving the pay scale of 5500-9000 (1640-2900) to Assistants/Stenographers Grade II.
17. Having taken aforementioned view on the issues cropped up for consideration, we could have dismissed the TA, but we cannot lose the sight of the fact that in WP (C) No. 8923-38/2004, wherein also, the Union of India had issued communication dated 15.4.2004 to ICSSR to withdraw the benefits of revised pay scale given to the applicants, Honble Delhi High Court quashed the said letter and declared the applicants in the said petition entitled to the pay scale of Rs.1640-2900.
18. Thus, we would prefer to dispose of the present TA, giving liberty to the applicants to make a representation to the respondents. The respondents, in turn, would decide the said representation as per procedure stipulated in Para 8 of letter No.F 1-4/97/YS-I dated 14.5.1998, keeping in view the aforementioned decisions of Honble Supreme Court and Honble Delhi High Court and also the decision of Honble Supreme Court in Civil Appeal Nos.288-289/2005 (Yogeshwar Prasad & Ors Versus National Inst., Edu. Planning & Admn. & Ors.). While deciding the plea of the applicants regarding refund of recovered amount, the respondents would record a specific finding to the effect that whether the overpayment to the applicants was attributable to any contributory mis-presentation by them or not. In case, the respondents come to the conclusion that such overpayment was not attributable to any mis-presentation by the applicants, they would refund the amount to them. TA disposed of. There is no order as to costs.
(A.K. Bhardwaj) (Dr.Ramesh Chandra Panda) Member (J) Member (A) /jk/