T.K.Peethambaran vs Union Of India on 4 August, 2011

[Cites 6, Cited by 0]

Kerala High Court

T.K.Peethambaran vs Union Of India on 4 August, 2011

Rejection of the claim for higher pay scale of Rs. 5000 - 8000 to the petitioner, who is working as Electronic Supervisor on the strength of his Diploma [as recommended by the 5th Central Pay Commission, accepted by the Government and implemented vide Annexure A1 dated 17.12.2009] upheld by the Central Administrative Tribunal as per Ext.P5, accepting the version put forth by the respondents is under challenge at the instance of the applicant.

2. Heard Mr. K. R. Ganesh, the learned counsel appearing for the petitioner and the learned Central Government counsel appearing for the respondent.

3. The petitioner joined service of the respondents as Electronic Supervisor in the Integrated Project/National Institute of Fisheries Port Harvest, Technology and Training way back on 11.12.1992. In fact, the qualification prescribed for the post was Diploma in Electronics, having an experience of three years or the certificate issued by the Government Authority i.e. I.T.I with 5 years' experience. The post was having a scale of pay of Rs. 1400 - 2300. O.P.(CAT) No. 3504 of 2011 : 2 : Later, after assessment of the facts and figures, the 5th CPC recommended to enhance the pay scales in all the Central Government Services and in the case of posts held by the persons like the petitioners, who were having Diploma, it was found feasible to recommend higher scale of Rs.5000 - 8000. However, in support of the post in question, i.e. Supervisor [Electronics], the enhancement stated was only in the pay scale of 4500 - 7000 as per the pay revision orders issued by the Government w.e.f 01.01.1996.

4. By virtue of the fact that the petitioner was having qualification of 'Diploma' and was liable to be treated on par with the Supervisors in the Electrical and Civil Wing, to whom the replacement scale was stipulated as Rs.5000 - 8000, a claim was put forth by the petitioner, which however came to be rejected vide Annexure A1 dated 17.12.2009; for the reason that in respect of the post of Supervisor [Electronics], Diploma was not the minimum qualification or essential qualification so far as an alternate qualification was also there, enabling the persons having ITI and 5 years experience to be considered for appointment against the post. The being the position, it being not a post for which Diploma was essential, the lower pay scale of Rs.4500 - 7000 O.P.(CAT) No. 3504 of 2011 : 3 : alone was accepted as payable, in turn denying the higher pay scale of Rs. 5000-8000 as payable in the case for Supervisors Electrical and Civil. The outcome as communicated by the Ministry to the Director was communicated to the petitioner as well. Subsequently, the pay scales of similarly situated persons in the Civil and Electrical Wings were enhanced, who were originally given the replacement scale of Rs.4500-7000, as Rs.5000 - 8000, which made the petitioner to make a representation seeking for similar benefits as per the Annexure A13 dated 24.04.2009. This was turned down by the Government as per Annexure A1 dated 17.12.2009, which made the petitioner to approach the Tribunal with the following prayers:

"i. To quash Annexure A1;

ii. To declare that the applicant is entitled to upgradation of pay to the pay scale 5000-8000 at par with the Foreman under the respondents with effect from 1.1.1996.

iii. To direct the respondents to upgrade the pay scale of the applicant to the scale of 5000-8000 with effect from 1.1.1996.

iv. To direct the respondents to draw and disburse the arrears in pay consequent to upgradation of pay scale with effect from 1.1.1996 O.P.(CAT) No. 3504 of 2011 : 4 : v. To grant such other reliefs as may be prayed fro and the court may deem fit to grant, and vi. grant the costs of this Original Application."

5. The claim was sought to be resisted by the Department pointing out that the order of rejection passed by the Ministry was perfectly within the four walls of law, as the factual position applicable to the two different posts was entirely different. In the case of Supervisors Electrical and Civil, the minimum qualification stipulated was Diploma; whereas it was stated as not so in the case of Supervisor (Electronics), where an alternate qualification of ITI with five years' experience was also prescribed and hence there could not be two different scales to the posts of two different categories of persons. Paragraph 9 of the reply statement is relevant, which is extracted below :

"9. It is submitted that fixation of pay scales to various posts and cadres is the domain of the Administration/Ministries concerned taking into account the recommendations of the expert bodies like Pay Commission, as observed by the Hon'ble CAT and Hon'ble Supreme Court. The V CPC had recommended that the pre-revised scale of Rs.1400-2300 in respect of Diploma Engineers in subordinate cadres may be upgraded to the pre revised scale of Rs.1600-2300. O.P.(CAT) No. 3504 of 2011 : 5 : The above recommendations were accepted by Govt. and the pay scale of diploma engineers in subordinate engineering cadres had been revised to Rs.5000-8000 as per SL No. IX (a) of Part B of Ministry of Finance, dept. of Expenditure notification dated 30.09.1997. In accordance with the above, proposal were put forth by this office for upgradation of the pay scale of the posts of Electronic Supervisor, along with that of Supervisor (Civil) and Supervisor (Electrical) , were not acceded to by the competent authority in the Ministry. It is submitted that the question of revision of pay of any post depends on many factors like nature of work, qualification duties and responsibilities etc. The posts of Supervisor (Civil), Electronic Supervisor and Supervisor (Electrical) are attached to different sections like Civil Works, Electronics and Electrical respectively and have different duties. Further the lower alternate qualification of Trade Certificate has not been prescribed for the posts of Supervisor (Civil) and Electrical. The Assistant Foreman were granted the upgraded pay scale of Rs.5000-8000 as per Annexure A12 by virtue of their parity with Processing Assistants, already found and established by the Hon'ble CAT in the O.A. 1323/92 filed by the Processing Assistants earlier. The competent authority in the Govt. to take decision on matters of O.P.(CAT) No. 3504 of 2011 : 6 : upgradation of pay scale is the Ministry of Finance, Department of Expenditure, Implementation Cell and the competent authority has not deemed it necessary to extend the upgradation of pay scale as already done in the cases of Assistant Foreman, Supervisor (Civil) and Supervisor (Electrical) to the post of Electronic Supervisor.

After hearing both the sides, the Tribunal accepted the version of the respondents and the O.A. was dismissed as per Ext. P5, which in turn is under challenge in this Original Petition.

6. The learned counsel for the petitioner points out that the explanation offered from the part of the Ministry and as accepted by the Tribunal does not have any rhyme or reason in so far as the intention of the 5th CPC was only to provide higher scale of pay to persons having higher qualification by way of 'Diploma'. Similarly, for the reason that some others having lesser qualification are also given an entry to the post in question, it cannot be a ground to deny the benefit of appropriate scale to the persons like the petitioners who are having higher qualification of 'Diploma'. The version of the respondent as put forth before the Tribunal is sought to be asserted by the learned standing counsel before this Court as well.

O.P.(CAT) No. 3504 of 2011 : 7 :

7. After hearing both the sides and after considering the pleadings raised, this Court finds that, there is no dispute to the fact that the competent authority to consider all these facts, especially, with regard to the qualification, the nature of post, remuneration to be paid etc. is the Expert body - the Central Pay Commission. It was accordingly, that a meticulous analysis was done, based on which appropriate scales were suggested so as to replace the existing pay scales. The Commission also found it necessary, as a matter of principle, to extend a higher scale in the case of persons having 'Diploma'. The relevant portion of the observations as extracted by the Tribunal, in paragraph 10, is in the following terms :

"10. The above qualification does not provide for diploma minimum qualification. Instead a lower alternate qualification has been provided for. Paragraph 54.38 of the Vth CPC recommendations reads as under :

"We find that the direct recruitment qualification for the initial pay scale of technical supervisors in Workshop is Diploma in Engineering or relevant discipline or graduation in science. We have, as a general principle decided to improve the remuneration of Diploma Engineering in government."

From the above, it is quite evident that the idea was to promote O.P.(CAT) No. 3504 of 2011 : 8 : better organizational interest, in so far as the posts were manned by persons having higher qualification of Diploma and the said decision was taken as a matter of policy. The quality of work expected from the persons who were occupying the posts and having Diploma was found higher, which alone was the reason for the 5th CPC to have made the recommendation as above. Whether it could be denied to the petitioner herein, who is also having a 'Diploma', merely for the reason that some persons of lesser qualification having certificate of ITI are also permitted to be inducted to hold the post, alone is the question to be considered.

8. According to the learned counsel for the petitioner, there is no basis for saying that there cannot be difference in salary in respect of the persons who are holding similar posts, based on their qualification. It has been made clear by the Apex Court in the crystal-clear terms that such distinction/differentiation is possible among the persons holding same or similar posts. Reliance is sought to be paced on the verdict rendered in Government of W. B. Vs. Tarun K. Roy and Others [(2004) 1 SCC 347].

9. But for the contention that in respect of Supervisor (Electronics), a lesser qualification of ITI with 5 years' experience is also a prescribed qualification, no other ground is raised by the O.P.(CAT) No. 3504 of 2011 : 9 : respondents to sustain the course and proceedings. Going by Annexure A14 Recruitment Rules for various posts in the Integrated Fisheries Project, the qualification stipulated for the posts in this regard is as given below :

"Electronic Supervisor :

Essential: (1) Matriculation or equivalent (2) Diploma in Radio of Tele-communication Engineering with 3 years experience in electronic service.

OR Any Government Recognized Trade Certificate in Radio or Telecommuncation Engineering service with a minimum of 5 years experience in the service of Radio or electronic equipment.

Stipulation of lesser qualification to have an initial entry to the post in question by itself cannot be a bar to decide the eligibility of persons like the petitioner, who are having higher qualification of 'Diploma', if possession of such higher qualification is sought to be promoted by the expert body i.e. Central Pay Commission which suggesting the replacement scale. The recommendation of the CPC has been admittedly accepted by the Central Government. It was accordingly, that the said benefit was ordered to be given to O.P.(CAT) No. 3504 of 2011 : 10 : persons having 'Diploma' in other segments as well; as borne by Annexure A11. In so far as the petitioner also possess 'Diploma' as above, the promotion sought to be given and extended by the CPC to persons having 'Diploma' is equally applicable to the persons like the petitioner as well. As such, this Court finds that the rejection of the claim, merely with reference to existence of alternate lesser qualification cannot be a sustainable ground.

10. The point to be considered is whether the petitioner is eligible to get the benefit of higher pay scale recommended by the 5th CPC and accepted by the Central Government by virtue of his possessing the Diploma. In other words, question is not whether such a scale could be extended to all the persons who are working as Supervisor [Electronics]. In view of the alternate lesser qualification prescribed for the post, it is possible that the post may be manned by persons having ITI with 5 years experience as well. In their case, the replacement scale at a lower level as suggested by the 5th CPC and accepted by the Central Government may be justified [we consciously avoid to make any firm opinion in this regard, as such persons are not parties and their eligibility to have a higher pay scale is not a subject matter before this Court]. That cannot be a ground for denying higher pay scale of Rs.5000 - O.P.(CAT) No. 3504 of 2011 : 11 : 8000 to the persons having Diploma as in the instant case. In other words, the Ministry as well as Tribunal were proceeding on a wrong tangent in moulding the issue and appreciating the same which is found as not palatable to this Court, being wrong and unsustainable.

11. The ruling rendered by the Apex Court with regard to the course to be pursued in the said circumstances, as per the decision reported in (2004) 1 SCC 347 [cited supra] is relevant in this context. It was a case where a dispute was involved with regard to different pay scales for persons holding similar posts, based on their difference in qualification. To appreciate the position, it will be worthwhile to note the essential facts, as disclosed from paragraphs 2 and 3 therein, which read as follows:

2. In the irrigation department of the State of West Bengal inter alia there existed two posts -

Operator-cum-Mechanic and Sub-Assistant Engineer. The First Pay Commission of the State of West Bengal in its report dated 31.12.1969 recommended the following pay-scales relating thereto:

                    Operator-cum-Mechanic      Rs.200-250

                    Sub-Assistant Engineer     Rs.350-600

                    3. It is not in dispute that by reason of

statutory rules the minimum qualification required for O.P.(CAT) No. 3504 of 2011 : 12 : recruitment for the said two posts were laid down as under:

"Operator-cum-Mechanic

(a) Pass in school final examination or its equivalent;

(b) Pass in certificate course in the trade of internal combustion engine from ITI or technical school recognized by the Government.

Sub-Assistant Engineer

(a) Pass in school final examination or its equivalent;

(b) Pass in diploma course in engineering from any government polytechnic."

The Apex Court also made a reference to the verdict already passed by the said Court in State of West Bengal Vs. Debdas Kumar [1991 Supp. (1) SCC 138] [particularly in paragraph 15] as extracted in paragraph 5. To avoid repetition we find it appropriate to extract paragraph 5 in toto as given below :

"5. The Sub-Assistant Engineers, it is not disputed, are directly recruited through Public Service Commission whereas no such procedure is laid down for appointment in the post of Operator-cum-Mechanic. It is not in dispute that some persons in the category of employees of Operator-cum-Mechanic who were possessing diploma in O.P.(CAT) No. 3504 of 2011 : 13 : engineering claimed entitlement to the nomenclature of the Sub-Assistant Engineer and the scale of pay prescribed therefor by filing two writ petitions in the Calcutta High Court. The matters eventually came up to this Court. A plea was taken in the said writ petitions by the appellants herein that the diploma holder Engineers working as Operators- cum-Mechanic in the Irrigation Department were not entitled to the said designation. The said plea was negatived by this Court in its judgment titled State of West Bengal and Others v. Debdas Kumar and Others holding:

"15. It has been contended for the appellants that by construing the notification as including Operators-cum- Mechanics in the lower time scale as Sub-Assistant Engineers and giving them a higher scale, there would be a division amongst the Operators-cum-Mechanics in the matter of their pay scale and such an anomaly would not have been contemplated by the rule makers. There is no force in this contention. It is well settled that difference in pay of employees belonging to the same cadre, post or educational qualification is constitutionally valid and permissible and is not violative of Articles 14 and 16 of the Constitution. The post of Sub-Assistant Engineer is a direct recruitment post. It appears that the Division Bench assumed that the post of Sub-Assistant Engineers were ultimately a promotional post for the Operators-cum- Mechanics through intermediary promotions in intermediary grades. This is incorrect. Under the Rules, the post of Sub- Assistant Engineer is not at all a promotional post for any categories of employees in the State, on the contrary, it is a direct recruitment post. It is not contested that 17 other employees similarly placed as the respondents herein were given the benefits of the said amended notifications and were conferred both status of Sub-Assistant Engineers and also the pay scale thereof for the reason that they were O.P.(CAT) No. 3504 of 2011 : 14 : also diploma holder engineers though they were not in the pay scale of Rs. 300-600. This is a concurrent finding that these respondents have been discriminated and the State Government had acted arbitrarily without any rational basis by conferring benefits of the notification to 17 other employees in other departments while denying the said benefits to the said respondents in the Agriculture Department (Emphasis supplied).

The Apex Court proceeded further and while considering the principle of equal pay for equal work, it was observed in paragraph 14 in the following terms :

"14. Article 14 read with Article 39 (d) of the Constitution of India envisages the doctrine of equal pay for equal work.

The said doctrine, however, does not contemplate that only because of the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable.

Employees performing the similar job but having different educational qualification can, thus, be treated differently."

12. From the above, it is quite obvious that there could be difference in the pay packet based on the higher qualification possessed by the persons concerned, though such persons are holding similar posts. In any view of the matter, the question to O.P.(CAT) No. 3504 of 2011 : 15 : be considered, as already mentioned hereinbefore, is whether the petitioner is entitled to have the replacement of scale of Rs.5000 - 8000 as awarded to persons holding similar posts in Supervisor [Electrical] and Supervisor [Civil], based on the qualification of 'Diploma', as extended to such persons vide Annexure A11. In so far as the recommendation of the 5th CPC has been accepted and implemented by the Central Government, giving such benefit to all the persons having 'Diploma' as borne by Annexure A11, there is no rationale in rejecting the same in respect of the petitioner herein, merely for the reason that some others with a lesser qualification are also holding the posts.

13. We find no reason to sustain the orders passed by the Tribunal and also the orders which were under challenge before the Tribunal. Accordingly, Annexure A1 to A5 are set aside. There will be a direction to the respondents to take further steps and issue appropriate proceedings so as to grant benefit of higher pay scale of Rs.5000-8000 to the petitioners herein, which shall be done, at the earliest, at any rate, within three months from the date of receipt of a copy of the judgment. It is made clear that fixation shall be given on 'notional basis' and the actual monetary benefits need be given only be prospectively. Based on the fixation O.P.(CAT) No. 3504 of 2011 : 16 : as above, the appropriate replacement of scale, pursuant to acceptance of the report of the subsequent Pay Commission and the implementation of the same shall also be assigned to the petitioners with all consequential benefits.

The Writ Petition is allowed to the said extent. No cost.

sd/-

P. R. RAMACHANDRA MENON, JUDGE sd/-

SHIRCY V., JUDGE kmd /True copy/ P.A. to Judge

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