Rajasthan High Court - Jaipur
Jose Thomas vs U O I And Ors on 23 November, 2017
Author: K.S. Jhaveri
Bench: K.S. Jhaveri
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
D.B. Civil Writ Petition No. 2322 / 2009
Jose Thomas, Son of Shri Thomas Joseph, Aged About 54 Years,
At Present Working As Laboratory Technician, Office of G.C.I.,
Central Reserve Police Force, Group Center, Golf Course Road,
Ajmer (Rajasthan)
----Petitioner
Versus
1. The Union of India, Through the Secretary, Home Affairs,
Government of India, New Delhi
2. The Inspector General, CRPF, Northern Sector, R.K. Puran, New
Delhi
3. Additional Deputy Inspector General, CRPF, Group Center-I,
Golf Course Road, Ajmer (Rajasthan)
4. The Central Administrative Tribunal, Jaipur Bench, Jaipur
Through Its Registrar, Jaipur
----Respondents
_____________________________________________________ For Petitioner(s) : Mr. Pradeep Mathur For Respondent(s) : Mr. B.S. Chhaba ASG, _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE DEEPAK MAHESHWARI Judgment 23/11/2017
1. By way of this petition, the petitioner has assailed the judgment and order of the Central Administrative Tribunal whereby tribunal has rejected the OA.
2. However, in view of the suggestions made by the earlier bench, the matter is covered by the judgment of Delhi Court in Sunil Kumar vs. UOI & ors. reported in (2015) 0 Supreme(Del) 2609 wherein following directions were issued:-
(2 of 6) [CW-2322/2009]
19. The present case is a striking instance of the government justifying an untenable differentiation on the anvil of doctrine of classification. The rationale cannot pass muster;
it is clearly untenable and the result discernable to the Court, i.e plain discrimination by the CRPF of two categories falling within the same class, i.e nursing staff.
20. In the case of ITBP too, the rationale wears thin- albeit for different reasons. ITBP (another wing of the Central Government) curiously rejects the demand for parity of grade pay to nursing staff (saying that Combatised personnel are discharging more onerous duties and nurses have to work in "static" postings). The irony here is not lost on the Court: in the CRPF this rationale is used to deny Combatised nursing staff parity with Non- Combatised nursing staff, vis-à-vis grade pay. In other words, here it is stated that Combatised staff perform onerous duties and are to be given higher grade pay. This logic is a perfect answer to the CRPF‟s stand in the petition against it. And the CRPF‟s stand that non-combatised nursing staff can get higher grade pay because they work in less onerous conditions, is a perfect answer to the ITBP‟s reply in the writ petition filed by its nursing staff. This Court does not want to speculate further because elements of the theatre of the absurd would emerge from exploring incompatible arguments made by two wings of the same authority, i.e the Central Government. Instead, it would prefer to rest its decision on the established principles which apply to consider claims for parity in pay structure and claims.
21. Executive "free play in the joints" in devising pay revisions was emphasized by the Supreme Court in the following passage in Secretary, Finance Department & Ors. v. West Bengal Registration Service Association & Ors. 1993 SUPP (1) SCC 153 where the scope of judicial review in such decisions was spelt out:
"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 (3 of 6) [CW-2322/2009] 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 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 emphasize 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 (4 of 6) [CW-2322/2009] 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."
22. The demand for parity in both the CRPF and ITBP amongst its nursing staff have certain salient aspects:
(1) It stems from a common recommendation of the VIth PC to treat all nursing staff equally (Para 3.8.3 (e) of the report/recommendations) in view of the "arduous" nature of their duties;
(2) The report/recommendation was that all nursing staff, regardless of whether they worked in hospitals or dispensaries, should be given "nursing allowance" of `3200/- per month. (3) Other wings of the Central Government, where nursing staff form part of the cadre:
typically in the Ministry of Health and Family Welfare have been granted pay scales and allowances in line with the Sixth PC report. (4) Before the Sixth PC recommendations and the CCS (Revised Pay) Rules 2008, there was no disparity as between Combatised nursing staff and Non-Combatised nursing staff, within CRPF.
23. The recommendation of the Sixth PC, pertinently is that:
"3.8.15 As mentioned in para 3.8.3, the Commission is recommending higher pay scales for the cadre of Nurses. This will affect some of the existing relativities of nursing cadres vis- a- vis other para medical staff. This, however, is a conscious decision of the Commission for giving a better deal to the Nurses in recognition of the duties being performed by them. Apart from the cadre of Nurses, the Commission has made a (5 of 6) [CW-2322/2009] conscious effort not to disturb any of the established relativities between the other cadres of para medical staff. In any case, the different categories of para medical staff will benefit from the re-organization of pay scales being recommended by the Commission. Accordingly, the following pay structure is being recommended for different categories of para medical staff including Nurses:- ********** ************** Posts of other para-medical technicians/personnel not mentioned above shall be extended the corresponding revised pay bands and grade pay. The posts which were in different pay scales earlier but have come to lie in an identical pay band and grade pay shall stand merged.
Rates of existing allowances for all the categories of para- medical staff, except those specifically considered in the Report (like HPCA/PCA), shall stand doubled."
24. The Central Government - and the CRPF as well as ITBP do not dispute that in regard to the replacement scales and increments, allowances recommended, etc by the Sixth PC, there is unreserved acceptance. However in regard to Grade Pay (and fixation in scale) there is resistance. This Court has already expressed why the CRPF‟s justification for denial of parity to Combatised nursing staff with its Non- Combatised nursing staff is discriminatory. The same logic prevails in respect of the claim of ITBP personnel. They may not be Combatised; yet, they do perform "arduous" duties. The pay scales recommended by the Sixth Pay Commission have been given them. The rationale for specifically denying grade pay (as claimed by them) is that they receive `3200/- per month as nursing allowance. However, that logic is a self defeating one; the allowance was recommended for all- evident from the above extract of the Sixth CPC. Like in the CRPF, that the nursing staff secure some allowance cannot be a counter to denial of what was recommended as their grade pay.
25. For the foregoing reasons, the writ petitions have to succeed. In W.P.(C) 1358/2014 the respondents are directed to accord parity to Combatised Sub-Inspector Nurses with Non- Combatised Staff Nurses (holding the rank of Sub-Inspector [SI]) and fix their grade pay at `4600/- per month, as claimed by them. Similarly, in W.P.(C) 3829/2014, the petitioners shall be granted parity with Nursing Sister, in the (6 of 6) [CW-2322/2009] grade pay of `4600/- (PB-2) in the pay scale of `9300/-34800/- of the Indo Tibetan Border Police Force (ITBP) in the case of all petitioners, except Petitioner Nos. 10,12,18,19 and 20- in the case of the latter, the grade pay shall be `4800/-. In both these petitions, the grade pay shall be in Category S-10 under the Central Civil Services (Revised Pay) Rules, 2008, (2008 Rules). The fixation shall be effective from the date the said rules came into force; consequential orders releasing differential amounts shall be issued within 12 weeks from today. W.P.(C) 1358/2014 and W.P.(C) 3829/2014 are allowed in the above terms; there shall be no order as to costs.
3. We issue the same directions in the present case.
4. The petition stands accordingly disposed of.
(DEEPAK MAHESHWARI),J. (K.S. JHAVERI),J.
BMG 59