Central Administrative Tribunal - Delhi
Ms Suman Meena vs Department Of Woman And Child Welfare on 28 April, 2023
1
OA No. 1279/2023
Item No. 52
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1279/2023
This the 28th day of April, 2023
Hon'ble Mrs. Pratima K Gupta, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
Ms. Suman Meena [Group - C, Pay-Parity]
Aged 34 Yrs, W/o Shri Ramavatar Meena,
R/o, RZG 366/2, Raj Nagar - II,
Palam Colony, Delhi 110077
Phone: +91-9910009728
E-mail: [email protected]
...Applicant
(By Advocate : Mr. Ravi Kumar)
Versus
1. Government of NCT of Delhi
Through: The Chief Secretary,
Inderprastha Estate, Sachivalaya,
New Delhi-110002
E-mail: [email protected]
Phone: +91-9868111799
...Respondent No- 1
2. The Director,
Department of Women & Child Development,
Maharana Pratap ISBT Complex,
Kashmere Gate, Delhi 110006
Phone: 011-23862652
E-mail: [email protected]
...Respondent No - 2
3. Union Ministry of Women & Child Development
Represented by: The Secretary MoW&CD
5th Floor, Shastri Bhawan,
New Delhi 110001
E-mail: [email protected]
Phone: 011-23383586
...Respondent No -3
(By Advocate: Ms. Sangeeta Rani for R-3
Mr. Amit Yadav for R- 1 & 2)
2
OA No. 1279/2023
Item No. 52
O R D E R (ORAL)
Hon'ble Mrs. Pratima K Gupta, Member (J) The applicant has preferred the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief(s):-
"(i) Direct & uphold the bifurcation of "Supervisor" cadre of employees by the 5th CPC (Page 42) as arbitrary and ultra-vires the Art. 14 of Constitution of India, to the extent of limiting 52 posts under Grade-I,
(ii) Direct the up-gradation of Grade-11 "Women Supervisors" to Grade-1 in terms of recommendations of 7th CPC (Page 50) and Respondent - 1 from date of joining (Page 620) r/w Sec. 2(h) & Sec. 4 of Equal Remuneration Act 1976,
(iii) Direct consideration of 'Supervisors' with experience of 05 years or more for promotion to post of CDPO in parity with Welfare Officers' being considered for promotion to post of CDPO & Superintendent,
(iv) Quash the Draft Recruitment Rules (Page 579, 581) notified by the Respondent - 2 for post of Supervisor (Women) Grade-1 & Grade-II as arbitrary and without defined distinct roles, duties, responsibilities and contrary to rule laid by 5th CPC,
(v) Prohibit the promotion of 'Welfare Officers' to post of 'CDPO with further direction to fill post of 'CDPO' from feeder cadre of "Supervisor (Women)" only,
(vi) Direct publication of total CDPO promotion vacancies with seniority list of 'Supervisor (Women) under ICDS scheme of Department of Women & Child Development.
(vii) Pass such other orders as necessary in interest of justice."
2. Learned counsel for the applicant takes us through the history and background of this Original Application. On 29.03.1997, the 5th Central Pay Commission (CPC), recommended creation of an intervening pay scale for the existing cadre of 3 OA No. 1279/2023 Item No. 52 Supervisors on account of pure seniority. On 21.11.2015, the 7th CPC held the aforesaid recommendations of the 5th CPC as improper and suggested merger of Grade-I & Grade-II of the Supervisor.
3. On 06.10.2017, the applicant was appointed to the post of Supervisor (Women), Grade-II by direct recruitment conducted by the Delhi Subordinate Services Selection Board (DSSSB). On 24.07.2020, the Respondent No. 1 directed the Respondent No. 2 to bifurcate the 'Women and Child Development Cadre of Supervisors (Women) from 'Social Welfare' DSW cadre. On 15.10.2022, the applicant came to know that the work and duties of Grade-II Supervisor (Women) were same and identical to that of Grade-I Supervisors. Accordingly, they preferred a representation seeking equal pay for equal work on 17.10.2022 for up-gradation of their pay from the date of joining and also grant of promotion to scale of CDPO.
4. It is not in dispute that the aforesaid representation is pending consideration before the respondents. In support of his claim, learned counsel for the applicant states that the 5thPay Commission defined two different pay scales in the same cadre thereby created an anomaly, but the 7th Pay Commission by their recommendations rectified the said anomaly so created by the 5th CPC. It was an attempt on behalf of the applicant to bring out their cause by way of the representation, i.e. to accept the 4 OA No. 1279/2023 Item No. 52 recommendations of the 7th CPC, in framing the draft Recruitment Rules, but the respondents without taking into account the same, ignored the representation and have come out with the draft rules. He further draws attention to the judgment passed by this Tribunal in O.A. No.1613/2001, wherein the Welfare Association approached this Tribunal for the said relief. However, this Tribunal did not interfere with the existing position and passed the following order :-
"14. A feeble attempt was made to show that the applicants would not be eligible for being considered for the promotional post. Particularly our attention has been drawn to the Recruitment Rules, copy of which is Annexure A-6, for the said promotional post. Even on that count the plea must necessarily be rejected because all persons by virtue of their seniority and experience have to be considered and it does not permanently de-bar the applicants from consideration for the said post. Necessarily, therefore, the plea is without merit.
15. For the reasons given above, the application must be held to be devoid of merit and is accordingly dismissed.
No costs."
5. Learned counsel for the applicant apprehends that while considering the claim of the applicant, the said decision in O.A. No. 1613/2001 of the Tribunal may come in the way of the applicant. According to him since the Tribunal did not give a finding on the issue of "Equal Pay for Equal Work", the said decision being per incurium, the representation of the applicant should be considered ignoring the decision in the OA filed by the Association (Supra) as the applicants therein, at the appropriate 5 OA No. 1279/2023 Item No. 52 time, could not establish their case with respect to the equality of pay. At present, the applicants have filed supported documents to establish that they are performing similar and identical duties under the same Organization. He further relies upon the judgment passed by this Tribunal in O.A. No. 3683/2016, relevant paragraph whereof reads as under:-
"2. Brief facts on which the reliefs mentioned above are sought to rest, reveal that whereas applicant No. 1 is an Association of Supervisors, working in the Directorate of Social Welfare, Government of NCT of Delhi, applicant No. 2 Smt. Arun Lata Pathak is a directly affected party. The applicants, an mentioned, are aggrieved by advertisement dated 12.8.2007 by which 21 posts of CDPO have been proposed to be filled on contractual basis for a period of six months on consolidated salary of Rs. 12,000/- for which the date of screening has been fixed from 28.8.2007 onwards. It is the case of the applicants that in the year 1989 the respondents had framed the recruitment rules for the posts of CDPO/Superintendent, Assistant Child Development Project Officer thereinafter to be referred to as ACDPO)/Deputy Superintendent and Supervisor/Welfare Officer under the proviso to Article 309 of the Constitution of India. The post of CDPO/Superintendent carries the pay scale of Rs. 2000-3200 (unrevised), the post of Deputy Superintendent/ACDPO carries the pay scale of Rs. 1640-2900, whereas the post of Welfare Officer/Supervisor carries the pay scale of Rs. 1400-2600 and Ra 1400-2300 respectively. The post of CDPO/Superintendent, as per the recruitment rules, was required to be filled up from amongst Deputy Superintendent/ACDPO, and the post of Deputy superintendent/ACDPO was required to be filled up from amongst Welfare Officers Grade 11 as well as Supervisors working in the office of the respondents. The post of supervisor/Welfare Officer Grade-II is the feeder cadre for the post of ACDPO/Deputy Superintendent. The post of Supervisor carried the pay scale of Rs. 1400-2300 and the post of Welfare Officer Grade-II was in the pay scale of Rs. 1400-2600, whereas the post of ACDPO carried the pay scale of Rs. 1640-2900. By virtue of order No. 69 dated 26.5.2000 (Annexure A-5), 52 posts of Supervisors (Women) were upgraded to the scale of Rs. 5500-175- 9000 w.ef. 1.1.1996 and in view of the aforesaid upgradation the Supervisors working in the office of respondents 2 and 3 were enjoying the same pay scale as of ACDPO/Deputy Superintendent. Same pay scale of feeder and promotional posts created some kind of anomaly, and that being so, it became necessary for the respondents to take some decision in the matter. In consideration to remove this anomaly, by virtue of notification dated 19.10.2006 (Annexure A-2) it was suggested that five sanctioned posts of ACDPO in the pay scale of Rs. 5500-125-9000 in various ICDS Projects would stand merged with existing sanctioned strength Supervisors (Women) Grade-1 Supervisors (Women) working the office of respondent No. 3 already upgradest in the pay scale of Rs 5500-9000 by virtue of the order 6 OA No. 1279/2023 Item No. 52 dated 26.5.2000 (Annexur e A-5) w.e.f. 1.1.1996. Both the cadres were thus enjoying the same pay scale but by virtue of notification dated 19.10.2006, these two cadres were merged into one: Inasmuch as, in view of the provisions contained in the recruitment rules under proviso to Article 309 of the Constitution, the posts of CDPO/Superintendent were required to be filled up from amongst ACDPOs/by Superintendents and the aforesaid cadre was merged in the cadre of Supervisors (Women) became necessary to amend the recruitment rules in a suitable manner. The cadre strength of CDPO which was 28 at the time of framing of the recruitment rules in 1989, was added by five more posts by virtue of letter dated 2.3 2006 (Annexure A-
6), and five more posts of CDPO became Available as five additional urban ICDS projects were approved by the Government of India. Vide letter dated 4.1.2007, Government of India approved for setting up of 16 additional ICDS projects with 1678 Anganwadi Centres under ICDS Scheme, and for this purpose to posts of CDPO were created with a stipulation that each new project would have one post of CDPO, one supervisor for 25 Anganwadi Centres, etc. In the manner aforesaid, Government of India approved 21 new projects with 21 posts of CDPO and 88 posts of Supervisors. The cadre of supervisors includes the post as held by the members of the applicant No. 1 Association It is the case of the applicants that while issuing notification dated 19.10.2006 by which the post of ACDPO in the pay scale of Rs. 5500-
0000 was merged with the cadre of Supervisors Grade-1 in the scale of Rs. 5500-0000, there had to be an amendment in the statutory rules, for which purpose the applicant Association addressed a letter on 9.10.2006 (Annexure A-8) to the office of respondent No 3 requesting for amendment of the recruitment rules for the post of Superintendent/CDPO When the applicants did not receive any reply to the representation referred to above, they made successive representations thereafter on 52-2007, 27-4-2007, 257-2007 and 16.8.2007 seeking promotion to the post of CDPO and also for amendment of the recruitment rules. While so, the respondents all of a sudden, invited applications to fill up 21 posts of CDPO for which the required educational qualification was the same as envisaged in the rules for the candidates seeking direct recruitment. This advertisement was issued on 17.8 2007 and the recruitment was to be made for a period of six months on the consolidated salary of Rs. 12.000/- per month. It is the case of the applicants that the method resorted to by the respondents in filling up 21 posts of CDPO on contractual basis by way of direct recruitment is highly prejudicial to their interest. They are holding the post of Supervisor Grade-1 and working in the office of the respondents since 20-25 years and even more. The plea raised by the applicants is that instead of inviting applications from open market in accordance with the Government of India instructions as available in Establishment & Administration, respondents are resorting to fill up the vacancies on contractual basis, despite the fact that vide letter dated 20.5-1986 the Department of Women & Child Welfare had already mentioned that the posts of CDPO are required to be filled up from amongst the female Supervisors up to the extent of 75%. It is also the plea of the applicants that the post held by them constitutes a feeder cadre and till such time the recruitment rules are amended suitably, the post is required to be filled up on ad hoc basis, and after amendment of the recruitment rules the case of the applicants is required to be considered for regular promotion. Before approaching this Tribunal for the desired relief, the applicants submitted a representation in the office of respondent No. 1 7 OA No. 1279/2023 Item No. 52 on 21.8.2007 requesting for suitable action, but when their entreaties brought no tangible result, present Application for reliefs as indicated above has been filed."
6. Learned Counsel for the respondent no 3, vehemently opposes the Original Application and states that no substantive relief has been sought from Respondent No. 3; rather the Original Application is directed only to Respondent Nos. 1 and 2. Since the applicant has placed challenge to the recommendations of the 5th CPC as well as non-acceptance of the recommendations of the 7th CPC, therefore, the necessary party would have been Ministry of Finance/DoP&T (Department of Personnel & Training) which, in fact, is a necessary party. He further argues that the Original Application is made for multiple prayers and as the same are not inter-connected, the O.A. is barred by Rule 19 of the CAT Procedure Rules and is not maintainable to that extent.
7. Per contra, Learned Counsel for the respondents no 1 and 2, who appears on advance service, vehemently opposes the Original Application and argues that the respondents have come out with the draft of Recruitment Rules annexed at (Annexure A-
8) and are in the process of finalizing the same by inviting objections from the stakeholders. On instructions he states that the last date for the same was probably 20.04.2023 and the applicant has chosen not to file the objections. He states that only after considering the objections, they shall finalize the 8 OA No. 1279/2023 Item No. 52 Recruitment Rules. He further states that the relief prayed for by the applicant is either belated or premature. He adds that though the 7th CPC may have made certain recommendations which find favor to the claim of the applicant, but the said recommendations have not been accepted by the respondents as a policy decision. Moreover, this Tribunal has a limited jurisdiction to interfere into a policy decision taken by the Respondents.
8. Heard the learned counsel for the parties.
9. In order to decide the issue involved in this Original Application, it is expedient to examine the prayer once again:
Prayer No. 1: "Direct & uphold the bifurcation of "Supervisor"
cadre of employees by the 5th CPC (Page 42) as arbitrary and ultra-vires the Art. 14 of Constitution of India, to the extent of limiting 52 posts under Grade-I."
The 5th CPC recommendations came into force in the year 1997 and at the appropriate time, the applicant was not even borne in the respective cadre/post that he is presently holding in the Organization. Moreover, after the 5th CPC, the 6thPay Commission and the 7thPay Commission recommendations have since been announced whereby the recommendations of the 5th CPC have either been merged or recalled. Therefore, at this stage, the said recommendations could not be challenged.9 OA No. 1279/2023 Item No. 52
Prayer No. 2:"Direct the up-gradation of Grade-II "Women Supervisors" to Grade-I in terms of recommendations of 7th CPC (Page 50) and Respondent-1 from date of joining (Page 620) r/w Sec. 2(h) & Sec. 4 of Equal Remuneration Act 1976."
Perusal of aforesaid prayer reveals that it has been worded in a way seeking extension of the recommendations made by the 7th CPC. However, as such recommendations have not been accepted by the respondents, the same cannot be enforced at this stage i.e. 7 years after they were made and being a policy decision of the respondents.
Prayer No. 3:"Direct consideration of 'Supervisors' with experience of 05 years or more for promotion to post of CDPO in parity with 'Welfare Officers' being considered for promotion to post of CDPO & Superintendent."
The above relief emanates from prayer no. 2, hence, cannot be granted.
Prayer No. 4:"Quash the Draft Recruitment Rules (Page 579,
581) notified by the Respondent-2 for post of Supervisor (Women) Grade-I & Grade-II as arbitrary and without defined distinct roles, duties, responsibilities and contrary to rule laid by 5th CPC." It is clear that the respondents have come out with the draft Recruitment Rules and the same have not been finalized and the objections have been invited pending finalization. Insofar as 10 OA No. 1279/2023 Item No. 52 denial of promotions of 'Welfare Officers' to the post of 'CDPO' is concerned, the same could be considered only after finalization of the Recruitment Rules. Therefore prayer no.4 is premature and cannot be allowed.
Prayer No. 5:"Prohibit the promotion of 'Welfare Officers' to post of 'CDPO' with further direction to fill post of 'CDPO' from feeder cadre of "Supervisor (Women)" only."
At this stage, learned counsel for the applicant does not press any prayer except prayer no. 5 i.e. 'prohibit the promotion of 'Welfare Officers' to the post of CDPO. It is amply clear that the respondents are at the verge of finalizing the seniority list for the post of Supervisors, which is the Grade Pay meant for Welfare Officers, but the same has been done after the recommendations of the CPC and the Recruitment Rules. Since they have not been finalized the same, the prayer 5 is also premature.The applicant is also seeking prohibition to promotion to the post of Welfare Officers and to fill the post of CDPO from the clear Grade of Supervisor. This would be considered only after the prayer 1, 2, 3 and 4 are decided.
Prayer No. 6:"Direct publication of total 'CDPO' promotion vacancies with seniority list of 'Supervisor (Women) under ICDS scheme of Department of Women & Child Development." This prayer is inconsequential at this stage.
11OA No. 1279/2023 Item No. 52
10. With respect to prayer 6, learned counsel for the applicant states that the seniority list has been finalized though not published. He prays for a direction to be issued with respect to prayer no.6 to publish the seniority list of 'Supervisor (Women)' under ICDS scheme (Integrated Child Development Services) at their website.
11. For the reasons stated hereinabove, this OA is dismissed with respect to prayer nos. 1 to 5. However, with respect to prayer nos. 6, the respondents are directed to upload the seniority list of supervisors (Women) ICDS cadre in the Department of Women & Child Department, within a period of four weeks from the date of receipt of a certified copy of this order, if the same is prepared already. In the event, it is yet to be finalized, it may be uploaded as and when the same is final but preferably within a period of four weeks, by Respondent Nos. 1 and 2.
There shall be no order as to costs.
(Anand S Khati) (Pratima K Gupta)
Member (A) Member (J)
/aks/