Central Administrative Tribunal - Gauhati
Shri Hiranmoy Sen vs Union Of India (Uoi) And Ors. on 19 January, 2001
JUDGMENT
D.N. Chowdhury, J. (V.C.)
1. The decision of the respondents communicated through D.O. No. PCC/FT/97 dated 4.2.2000 by the Deputy Director (Legal), Office of the Comptroller and Auditor General of India, New Delhi informing the Government decision declining to revise the pay scale of Senior Auditors in the Indian Audit and Accounts Department is the subject matter of this proceeding which has arisen in the following circumstances:
The applicants, 149 in number, are Senior Auditors in the Office of the Principal Accountant General (Audit), Assam, Meghalaya etc. at Shillong and Guwahati under the Indian Audit and Accounts Department, Government of India (hereinafter referred to as IA and AD). The applicants were initially appointed in the erstwhile composite office of the Accountant General, Assam, Meghalaya etc., Shillong as Auditors in the pay scale of Rs. 330-560 or as Selection Grade Auditors in the pay scale of Rs. 425-800. In the later part of 1983 proposals were made for restructuring of IA and AD with a view to step up the functional performance and the same was forwarded to the Comptroller and Auditor General of India, respondent No. 2. The proposal envisaged a higher level of specialization and functionalisation in the cadre for audit and better pay scales for those cadres. The Government assented to the said proposal. In March 1984, the composite offices of the States' Accountant General were bifurcated into two separate offices with two distinct and separate cadres, one for the Audit functions. Under the scheme, 80% of the Auditors in the separated Audit office who were entrusted with the actual audit work, were sanctioned higher pay scale of Rs. 425-800 at par with the Assistants Grade of Central Secretariat Service, Consequently, the applicants were appointed on permanent transfer to the higher functional grade post of Auditors in the pay scale of Rs. 425-800 in the separated office of the Accountant General (Audit), Assam, Meghalaya etc., Shillong and Guwahati with effect from 1.3.1984.
2. The applicants stated and contended that their duties and responsibilities were no less onerus than the Assistants in the Central Secretariat Service. On the other hand, their duties and functions and the measures of responsibilities undertaken by them were qualitatively higher than those of the said Assistant and therefore, the applicants were granted the higher pay scale of Rs. 425-800. The erstwhile pay scales of the Assistants of Central Secretariat Service was also the same, i.e. Rs. 425-800 (pre-revised) and therefore, the Senior Auditors of IA and AD enjoyed parity of the pay scales with the Assistants of the Central Secretariat from the date of creation of their cadres, i.e. 1.3.1984.
3. The Fourth Central Pay Commission placed the senior Auditors of IA and AD in the same group as the Assistants and Stenographers of Central Secretariat carrying the pay scale of Rs. 425-800 and recommended the revised scale of Rs. 1400-2600 for both Assistants and Stenographers of Central Secretariat and the senior Auditors of IA and AD, which was initially accepted and given effect by the Government with effect from 1.1.1986. The Assistants of the Central Secretariat moved the Central Administrative Tribunal, Principal Bench, by filing O.A. No. 1538/1987 claiming higher pay scale and the Principal Bench by its Judgment and Order dated 23.5.1989 allowed the application and persuant thereto, the Government of India by O.M. dated 30.7.1990 issued orders for revision of the scale of pay for the Assistants and Stenographers in the Central Secretariat and accordingly prescribed the revised scale of pay of Rs. 1640-60-2600-EB-75-2900 for the pre-revised scale of pay of Rs. 425-15-500-EB-560-20-700-EB-25-800 with retrospective effect, i.e. with effect from 1.1.1986. Since the aforesaid order introduced a partial revision in the same pre-revised scale of pay disturbing the existing parity and internal relativity in the pay scale of senior Auditors of IA and AD with the Assistants of Central Secretariat, these applicants submitted their representation claiming higher revised scale of pay in terms of the O.M. No. 2/1/90-C.L. IV dated 30.7.1990. Failing to get appropriate response from the respondents a large section of the present applicants moved this Tribunal praying for pay parity and for extending the higher revised pay scale of Rs. 1640-2900 with retrospective effect from 1.1.1986. The aforesaid O.A. was registered and numbered as O.A. No. 45 of 1992.
4. The respondents submitted their written statement opposing the claim of the applicants, wherein the respondents also took the stand that the subject matter of the O.A. was under consideration of the National Council (Joint Consultative Machinery) and therefore, the Government could not unilaterally decide the matter and therefore, the application was premature. The respondents also contended that the benefit of the higher pay scale that was granted by the order dated 30.7.1990 was not extendable to other bodies in the pre-revised scale of pay of 425-800 in other Government Department and that the applicants also did not fulfill the requirement regarding some classifications and the method of recruitment. The respondents in their written statement sought to justify their action by contending that the nature of duties and responsibilities of the Assistants of Central Secretariat were different from the applicants. The respondents further contended that the applicants and Assistants and Stenographers of Central Secretariat constituted two different and distinct classes and therefore, it was permissible to prescribe different pay scales for them. The Tribunal disposed of O.A. No. 45/1992 by its order dated 2.11.1994 and turned down the contention of the respondents refusing to grant parity in pay scale to those applicants and upheld the claim of the applicants. The Tribunal by the said judgment held that refusing to grant pay parity to those applicants was not rational and held that injustice had been caused to those applicants and made the following specific observations:
(i) The applicants are entitled to get parity in their revised pay scale with the Assistants and Stenographers of Central Secretariat Service on the principle of 'Equal pay for Equal work'.
(ii) Refusal by the respondents to grant the parity in pay scale to the applicants is in violation of Articles 14, 16 and 39(d) of the Constitution.
(iii) By refusing the parity in pay scale to the applicants the respondents have acted arbitrarily and illegally.
(iv) There is no effective and convincing reason to deny the Senior Auditors of IA and AD are required to be treated as of the same class as found by the 4th Central Pay Commission.
(v) The Assistants of the Central Secretariat Service and the Senior Auditors of IA and AD are required to be treated as of the same class as found by the 4th Central Pay Commission.
(vi) There did not exist any rational of reasonable criteria to differentiate the two sets of posts.
(vii) The differentiation gives rise to disturbance or internal relativity in the pay scales leading to an anomaly which is required to be removed by the respondents.
(viii) As the applicants are unequally treated their grievances of discrimination is fully justified."
The Tribunal while adjudicating the aforesaid O.A. framed the following specific issues:
(i) Whether the applicants are entitled to get parity of pay scale with the Assistants and Stenographers Grade-C of the Central Secretariat Service on the principle of Equal pay for Equal work and on the basis of other grounds raised by them;
(ii) Whether the refusal to grant the applicants pay parity by the respondents is in violation of Articles 14, 16, and 39(d) of the Constitution of India;
(iii) Whether the respondents have acted contrary to the recommendation of the Fourth Pay Commission arbitrarily and illegally?
(iv) Whether any relief can be granted to the applicants and if so, what relief?"
The Tribunal answered the issue Nos. 1, 2 and 3 in the affirmative, but as regards issue No. 4, the Tribunal directed the respondents to look into the matter and take an appropriate decision afresh without postponing the issue to the report of the Fifth Central Pay Commission.
5. The aforesaid decision of the Tribunal was not assailed at any stage. On the other hand, the respondents submitted various petitions before the Tribunal by way of Misc. Petitions, namely M.P. Nos. 68/95, 105/95, 26/96, 68/96, 69/96, 100/96, and 121/96, wherein the respondents prayed for extension of time for compliance with the decision of the Tribunal. The Tribunal by its order dated 4.7.1996 in M.P. No. 100/96 finally closed the petition with the hope that the respondents would sincerely abide by their own promise to take final decision within 31.3.1996 and implement the directions contained in the order dated 2.11.1994 in O.A. No. 45/1992. After a long lapse, a Misc. Petition was presented in the aforesaid O.A. which was registered and numbered as M.P. No. 121/1996, by the Principal Accountant General (Audit), Assam, Meghalaya etc., Shillong, inter alia mentioning that it had been decided by the Government not to increase the pay scale of the Senior Auditors from Rs. 1400-2600 to Rs. 1640-2900 on the following considerations:
"(i) That the pay scale of Assistants was increased from Rs. 1400-2600 to Rs. 1640-2900/- on the specific merit of the case, based on the orders of the CAT, Principal Bench, New Delhi.
(ii) That the demand of the employees in the National Council of Joint Consultative Machinery to restore parity with the Assistants of the Central Secretariat had been considered on merits and it was decided to record a disagreement on this issue.
(iii) That it is apparent that any isolated decision regarding refixation of the pay scale of Senior Auditors will have repurcussions on the pay pattern of the Senior Accountants not only in the Indian Audit and Accounts Department but also in other organised Accounts Departments in Government of India, namely Indian Railway Accounts, Indian Civil. Accounts, Indian Defence Accounts, P&T Finance and Accounts etc. It is also likely to have chain reaction in respect of other similar categories of posts in the Central Government.
(iv) That in the light of the interlinked parity issues that necessarily crop up in conceding this demand, the issue of grant of higher pay scale to Senior Auditors necessarily has to be taken in the context of the demand for parity of Senior Accountants with the Assistants of the Central Secretariat Service and other similar categories who are also like to claim parity. It is not possible to take a decision extending the pay scale now enjoyed by Assistants in the Central Secretariat applying the parity principle, to all categories claiming parity. It has also been mentioned that the matter had been specifically referred to the Fifth Pay Commission and could not be taken up for final order of the Government in the light of the report and recommendations of fifth pay Commission."
6. The applicants submitted written objection to the Misc. Petition and referred to the stand taken by the respondents in the various M.Ps. consequent to the judgment of the Tribunal and the order passed by the Tribunal on those M.Ps. It was also inter alia pleaded that the grounds for refusal mentioned in this application were already considered by the Tribunal which were rejected by the order of the Tribunal dated 2.11.1994. In course of the aforesaid proceeding, the Tribunal by its order dated 24.9.1996 directed the respondents to submit the copy of the order/decision mentioned in the M.P. refusing to grant pay parity with that of the Assistants in the Central Secretariat to the applicants and in persuant thereto a copy of the Government decision dated 2.7.1996 was produced, wherein it was stated that in view of the Tribunal's order the previous Government had approved the higher revised pay scale of Rs. 1640-2900 for the senior Auditors of IA and AD, but subsequently the above decision was reversed by the new Government who, in consultation with the JCM had taken a view that any decision to refix the pay scale of senior Auditors would have implications in the pay pattern of senior Accountants in the organised Accounts Department and also would have chain reaction and accordingly the same was rejected. The Tribunal disposed of the M.P. No. 121/96 on 11.2.1997 observing, inter alia, that if the applicants were aggrieved by the Government decision they shall approach the Tribunal for redressel.
7. The applicants thereafter filed O.A. No. 63 of 1997. The respondents entered appearance and filed their written statement, contending, inter alia that following a request by the representatives of the JCM that a decision similar to the decision in the case of senior Auditors might be taken in the case of senior Accountants also, the demand was considered on merit in the National Council of the JCM and adisagreement was recorded. It was further contended that as refixation of pay scale of senior Auditors would have repercussions on the pay pattern of the senior Accountants in the other department of Government of India, it was not possible to take a decision extending the pay scale enjoyed by the Assistants of the Central Secretariat to the senior Auditors. Virtually, all the pleas that were taken earlier in O.A. No. 45/1992 and the pleas that were taken in the M.Ps. were again taken in O.A. No. 63/97.
8. The Bench after hearing both the parties and considering the rival contentions and also taking note of the earlier judgment passed on 2.11.1994, the Tribunal held that the earlier judgment of the Tribunal attained its finality and therefore, it was binding on the respondents and also that the respondents, in the facts of the case, failed to comply with the judgment. The Tribunal in its judgment also observed the nature of work, classifications, responsibilities of senior Auditors were found to be same or similar with the Assistants of the Central Secretariat Service and they had also been given the same scale of pay. It also observed that the Fourth Central Pay Commission also confirmed the said situation. The Tribunal further held that merely because some more employees would claim similar benefits it could not be ground to deny the applicants their right to claim parity of pay scales, more particularly when the respondents did not prefer any appeal against the judgment and order dated 2.11.1994. The Tribunal accordingly directed the respondents to consider the true spirit and direction given in the judgment dated 2.11.1994 in O.A. No. 45/92 and to pass necessary and appropriate orders regarding parity of pay within the period specified.
9. The Government thereafter took the decision which is impugned in this proceeding which was communicated vide D.O. letter dated 4.2.2000 expressing its inability to confer parity of pay scale with the Assistants of the Central Secretariat. Hence this application.
10. The respondents submitted their written statement and disputed the claim of the applicants.
11. The key question in this proceeding is the admissibility for pay parity of the applicants with the Assistants in the Central Secretariat Service. The question is no longer Res integra in view of the decisions rendered by the Tribunal in O.A. No. 45/92 dated 2.11.1994 as well as Judgment and Order dated 14.9.1999 passed in O.A. No. 63/97. The Bench in clear terms, in O.A. No. 45/92 came to a positive conclusion that the applicants were entitled to get parity in the revised scale of pay with the Assistants and Stenographers in the Central Secretariat Service and that refusal of the respondents to grant the parity in pay scale to the applicants was in violation of Articles 14, 16 and 39 (d) of the Constitution of India. The Tribunal also held that by refusing the parity in pay scale the respondents had acted arbitrarily and illegally.
12. In view of the clear pronouncement made by the Tribunal in its judgment there was/ is any room for getting away and to taken a decision contrary to the judgments rendered by the Tribunal. The application also involves as to whether the Tribunal in its two judgments left any elbow room to make any manoevre by the respondents.
13. In O.A. No. 45/92 the Tribunal finally adjudicated the issues raised directly and substantially between the same parties. The issues involved in the aforementioned O.A. were the issues in which the Tribunal has had the exclusive jurisdiction. The decision rendered by the Tribunal has attained its finality and binding on the parties and the decision rendered by it shall operate as Res judicata against subsequent disputes within the same parties before the Court or Tribunal. A decision on merit rendered between the parties cannot be permitted to be reopened on any ground whatsoever. Neither law nor logic, nay any administrative exigency or political compulsion should withstand the implementation of the lawful decision of the competent authority that has attained finality. The Tribunal conclusively decided that the applicants were entitled to get parity in the pay scale with the Assistants and Stenographers of the Central Secretariat on the principle of 'equal pay for equal work'. It was also held that the denial of the same by the respondents amounted to violation of Articles 14, 16 and 39(d) of the Constitution, and therefore, the respondents acted arbitrarily and illegally. The Tribunal found that there was no justifiable, effective and convincing reason to deny the parity in pay scale to the senior Auditors of IA and AD and the applicants were required to be treated as of the same as found by the Fourth Central Pay Commission. The direction was issued by the Tribunal. The issues raised were affirmatively adjudicated upon and the respondents were ordered to look into the matter and lake an appropriate decision, naturally, to remove Ihe infirmities and to remove the illegality. The two decisions mentioned above, did not leave any ambiguity and the respondents were left with no choice, but to implement the order. As mentioned earlier, the Tribunal in no uncertain terms held that the applicants were entitled to get parity in their revised pay scale on the principle of 'equal pay for equal work'. The 'equal pay for equal work' for both men and women is a Constitutional objective set out with the Directive Principles of State Policy. The Constitution aims at the fusion of fundamental rights and the directive principles of the State Policy. Together they create the conscience of the Constitution. Article 39 though included in the chapter of Directive Principles of the State Policy, it is fundamental in nature. The principle of 'equal pay for equal work' is not an abstract doctrine. It is indeed open to the State to prescribe different scales of pay for different classes/cadres having regard to the duties and responsibilities. Where two classes of employees perform identical or similar duties and carry out similar functions with some measure of responsibility, having same qualification, it would be entitled to equal pay. Where the State denies them the equality of pay, its actions could be violative of Articles 14 and 16 and the Court would strike down those as discriminatory. In the instant case, the Tribunal analysed the rational behind the State action in prescribing two scales of pay and found inviduous discrimination was practised without there being any rational classification. The Tribunal gave a decisive and clearcut finding on the issues and held as such. The respondent authority as elluded earlier had no choice, but to give effect to.
13A. Rule of law is the basic feature of the Indian polity. It embraces some internal quality of public law. Rule of law enjoins that there should be certainty and there should be some predictability. Official action is to congruent with the legislative purpose. In applying the ground of legality Courts and Tribunals are effectively acting as the interpreter of the Parliament's will. Parliamentary sovereignty, executive necessity and rule of law are not anachronistic. The Parliament enacted the Administrative Tribunals Act to provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union, etc. The judgment rendered by the Tribunal is final and binding. The judgment in question was not assailed in any higher forum. The respondent authority after the decision rendered, since not assailed in any legal institution, owed the duty to implement the order. The responsibility to maintain law lies on all individuals and institutions. The responsibility is same on the three organs of the State. The Constitution has separated and defined the functions of the respective fields. It has to perform the functions entrusted to it and respect the functions of others. None is free from errors and so also the Tribunal cannot claim infallibility. It is said that a Judge who has not committed a mistake is yet to be born. Indian jurisprudence, in fact, acknowledge the fallibility of the Courts and Tribunals and provides for both internal and external checks to rectify the errors. The Constitution as well as the Act entrusted the Tribunal of interpreting and administering the law whose view is final and binding on all till it is corrected, modified by a higher forum or by permissible legislative measure. Any attempt designed to question the legality is likely to subvert the law and only invite anarchy. Law is not autonomous, but rest on the support of those it governs. The law is the servant of the sense of rightness in the community.
14. We have given our anxious consideration on the issue and in our considered opinion the reasons cited in the impugned order dated 4.2.2000 only reflect the extraneous considerations, overlooking the relevant considerations. The reasons cited in Clause 9 on the purported ground of alleged disagreement in the JCM cannot be upheld on the basis of the earlier finding on the issue by the Tribunal in O.A. No. 45 of 1992. The impugned order dated 4.2.2000 is accordingly set aside and the respondents are directed to implement the order of the Tribunal dated 2.11.1994 in O.A. No. 45/92 as well as the order dated 14.9.1999 in O.A. No. 63/1997 forthwith and to give all consequential benefits to the applicants forthwith.
15. The application is allowed and the respondents are ordered to pay cost of Rs. 5000/- (Rupees five thousand only).