Delhi High Court
Uoi & Anr. vs Preeti Shukla on 25 April, 2013
Author: Pradeep Nandrajog
Bench: Pradeep Nandrajog, V. Kameswar Rao
$~11 & 17
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision : April 25, 2013
+ W.P.(C) 21357-59/2005
UOI & ORS. ..... Petitioners
Represented by: Mr.Amrit Pal Singh, CGSC with
Ms.Gurjinder Kaur, Advocate
versus
J.C.GONSALVEZ & ORS. ..... Respondents
Represented by: Mr.L.R.Khatana, Advocate
W.P.(C) 6001/2011
UOI & ANR. ..... Petitioners
Represented by: Mr.Ruchir Mishra, Advocate with
Mr.Ramneek Mishra and Mr.Sanjiv Kumar
Saxena, Advocates
versus
PREETI SHUKLA ..... Respondent
Represented by: Mr.L.R.Khatana, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE V. KAMESWAR RAO
PRADEEP NANDRAJOG , J. (Oral)
1. Vide order impugned in W.P.(C) No.21357-59/2005, pronounced by the Tribunal on November 17, 2004, the writ petitioners have been directed to pay salary to the Assistant Chemist and Chemist working in the Directorate of Vanaspati Vegetable Oils and Fats, Department of Food and Public Distribution in the pay scale `5000-8000 and `6500-10500 W.P.(C) Nos.21357-59/05 & 6001/2011 Page 1 of 6 respectively with effect from the date when recommendations of the 5 th Central Pay Commission were implemented upon being accepted by the Government i.e. January 01, 1996.
2. The Tribunal has followed the said decision when it pronounced an order on December 10, 2010, which is under challenge in W.P.(C) No.6001/2011.
3. Thus, learned counsel for the parties agree that the pleadings in W.P.(C) No.21357-59/2005 be considered.
4. The Tribunal has noted that in para 51.29 of its report the 5th Central Pay Commission had opined as under:-
"51.29 To support the effort of the offices engaged in Scientific activity there is a large number of scientific and technological staff. They are distributed across various Ministries, Departments, attached and subordinate offices, including national laboratories and field programmes. They assist scientific offices in setting up experiments, conducting various tests to ascertain physical chemical and other properties of samples and in collecting information from various technical papers, field reports, surveys and documents for the purpose of planning new experiments, or assisting officers in writing technical reports, programmes and projects. Some of them are engaged in regulatory, training and extension type of work, such as food and drug control, agriculture extension etc. Still others perform work of routine character like preparing reagents, conducting standardized tests, calibration and so on. The level of duties, however, does not vary to a great degree. They are usually recruited with basic qualifications of graduation or post-graduation in science, degree or diploma in engineering, or even matriculation with science, with or without special diploma, certificates, training or experience."
5. As against the replacement scale `4500-7000 to the pre-existing scale `1400-2300 in which Assistant Chemists and Junior Technical W.P.(C) Nos.21357-59/05 & 6001/2011 Page 2 of 6 Assistants were placed, the Pay Commission recommended the higher replacement scale of `5000-8000 and for Chemists and Technical Assistants as against the replacement scale `5500-9000 to the pre-existing scale `1640- 2900 recommended the replacement scale of `6500-10500.
6. Based thereon the Ministry of Finance gave concurrence to a request sent by the Department of Science and Technology to grant said two scales of pay to Junior Technical Assistants and Technical Assistants and passed an order to said effect on August 18, 2000, relevant part whereof reads as under:-
"Fifth Pay Commission had recommended that for (i) a post having qualifications of B.Sc./Diploma in Engineering as essential eligibility condition at the entry level and in the pre-revised pay scale of `1400-2300, a higher replacement scale of pay of `5000-8000 may be allowed, and (ii) a post having prescribed qualification of an Engineering Degree/M.Sc. and in the pre-revised pay scale of `1640- 2900, the higher replacement scale of pay of `6500-10500 may be made admissible subject to the condition that educational qualifications laid down for direct recruitment should apply to promotions also.
2. It has been decided with the approval of the Ministry of Finance, Department of Expenditure (Pay Implementation Cell) that in accordance with the above recommendations of 5th Central Pay Commission, the following replacement scales of pay will be admissible to Jr. Technical Assistants (Group 'C' post) and Technical Assistants (Group 'B' post) in the Department of Biotechnology w.e.f. 1.1.1996:-
Post Pre-revised pay Normal High replacement scale replacement pay scale pay scale admissible with presently effect from admissible 01.01.1996 Junior `1400-2300 `4500-7000 `5000-8000 (S-9) Technical W.P.(C) Nos.21357-59/05 & 6001/2011 Page 3 of 6 Assistant Technical `1640-2900 `5500-9000 `6500-10500 (S-12) Assistant
7. The argument therefore advanced before us today that recommendations of the Pay Commission are not binding on the Government and unless accepted have no value in a Court of law is noted and rejected for the reason we find that recommendations of the 5 th Central Pay Commission as per para 51.29 that Scientists and Technological Staff engaged in Scientific activity distributed across various Ministries, departments, attached and subordinate offices including laboratories need to be paid more salary have been accepted by the Government and implemented with respect to Junior Technical Assistants and Technical Assistants.
8. The logic in the recommendations made by the Pay Commission is that for nearly all posts of Junior Technical Assistants or Assistant Scientists minimum eligibility criteria is a Bachelors Degree in Science or Engineering and for the post of Technical Assistant and Scientists the requirement is a Masters Degree.
9. It is not in dispute that Assistant Chemists and Chemists under the petitioners have the said minimum educational qualification.
10. It is also not in dispute that for Technological Staff and Scientists in some departments replacement scale benefit as recommended by the Pay Commission has been implemented.
11. The only contention urged is that the Government of India has not taken a decision with respect to Assistant Chemists and Chemists working in the laboratory established by the Directorate of Vanaspati Vegetable Oils and Fats.
W.P.(C) Nos.21357-59/05 & 6001/2011 Page 4 of 612. Now, that the laboratory is a well-equipped laboratory exclusively devoted to the analytical and standardization of oils and fats is a pleading of the petitioners themselves.
13. The argument that the Government has not taken a decision pertaining to the Assistant Chemists and Chemists working in the laboratory established by the Directorate of Vanaspati Vegetable Oils and Fats is neither here nor there for the reason the issue would be: Whether the Government can selectively made applicable the recommendations of the 5 th Central Pay Commission to some and deny the same to a few identically situated persons.
14. The answer has to be: 'NO'.
15. The reason is that the opinion of the 5th Central Pay Commission in para 51.29 of its report pertains to Scientific and Technological Staff engaged in Scientific activity in various Ministries, Departments, attached and subordinate offices including National Laboratories. The Commission has noted different kinds of duties discharged by Scientists and Technocrats and has opined that they do not vary in the degree of applicability. Now, the Government could have accepted or rejected the recommendations of the 5 th Central Pay Commission, but upon accepting the same implementation could not be selective.
16. We have repeatedly asked learned counsel for the petitioners as to what is the basis for the Government not to take a decision pertaining to Assistant Chemists and Chemists working in the laboratory established by the Directorate of Vanaspati Vegetable Oils and Fats. We get no response.
17. It is settled law that the State cannot act discriminately. Unless the petitioners can show some material and based thereon a conscious W.P.(C) Nos.21357-59/05 & 6001/2011 Page 5 of 6 decision that Assistant Chemists and Chemists working in the laboratory established by the Directorate of Vanaspati Vegetable Oils and Fats are not engaged in Scientific activities; which obviously the Government cannot demonstrate, there would be no rationale to deny higher pay scale to them.
18. We concur with the reasoning of the Tribunal and thus dismiss both writ petitions but without any orders as to costs.
(PRADEEP NANDRAJOG) JUDGE (V. KAMESWAR RAO) JUDGE APRIL 25, 2013 mamta W.P.(C) Nos.21357-59/05 & 6001/2011 Page 6 of 6