Central Administrative Tribunal - Delhi
Prashant Kulkarni vs M/O Personnel,Public Grievances And ... on 28 April, 2022
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OA No.1558/2015
With
OA No.1561/2015
Central Administrative Tribunal
Principal Bench: New Delhi
OA No.1558/2015
With
OA No.1561/2015
Reserved on: 07.04.2022
Pronounced on: 28.04.2022
Hon'ble Mr. A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
OA No.1558/2015
1. Prashant Kulkarni
S/o Shri V.V. Kulkarni
Aged about 45 years
Designation: Assistant
R/o Sector-1/703, R.K. Puram,
New Delhi - 110022.
2. Harish Arora
S/o Shri Bhagwan Dass Arora
Aged about 56 years
Designation: Assistant
R/o E-16/158, Sector-8, Rohini, Delhi - 110085.
3. P.K. Satija s/o Late Shri M.L. Satija
Aged about 45 years
Designation : Assistant
R/o RZ-28 B, Durga Vihar Phase-II,
Dinpur, Najafgarh, New Delhi-110043.
4. R. Rajeev s/o Shri V.R.K. Kurup
Aged about 50 years
Designation : Assistant
R/o B-V/95, 2nd Floor, U.D.A.P. Colony,
Nehru Nagar, New Delhi - 110065.
5. Kanchan Sharma
W/o Shri Rudar Raj Sahrma
Aged about 49 years
Designation : Assistant
R/o Flat No. 923, Pkt. B,
Hastsal, New Delhi - 110059.
6. Rajiv Sharma
S/o Late Shri S.R. Sharma
Aged about 50 years
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Designation : Assistant
R/o C-109, Sarojini Nagar, New Delhi - 110023.
7. Sanjib Mallick
S/o Late Shri U.C. Mallick
Aged about 49 years
Designation : Assistant
R/o Flat No. 6, Shivalik Apartments,
Kalkaji, New Delhi-110019.
8. Sunil Kr. Sharma
S/o Mr. S.C. Sharma
Aged about 38 years
Designation : Court Master
R/o A-7/1, 1st Floor, Sewak Park
Dwarka Mor, New Delhi 110 059.
9. Surat Singh
s/o Shri Nain Singh
Aged about 40 years
Designation : Section Officer
R/o C-1/248, Sector-17, Rohini, New Delhi.
10. S.P.S. Rawat
s/o Shri D.S. Rawat
Aged about 41 years
Designation : Section Officer
R/o A-213/B 1, Shalimar Garden Extn. II,
Sahibabad, Ghaziabad (U.P.)
11. A. Thomeena
W/o Shri V.R. Harirajan
Aged about 54 years
Designation : Section Officer
R/o B-61, Akash Ganga Apartment,
Plot No. 17, Sector-6,
Dwarka, New Delhi - 110075.
12. M.K. Goyal
s/o Late Shri R.D. Gupta
Aged about 58 years
Designation : Section Officer
R/o G-22/142, Sector-7, Rohini, New Delhi.
13. Ram Chander
s/o Late Shri Mohan Lal Sharma
Aged about 62 years
Designation : Section Officer (Retired)
R/o RZ-46/165, Gali No. 7,
Durga Park, New Delhi - 110045.
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OA No.1558/2015
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14. K.K. Pukhral
s/o Late Shri J.S. Pukhral
Aged about 59 years
Designation : Section Officer
R/o K-19, 2nd Floor, Khirki Extension,
Malviya Nagar, New Delhi.
15. Dinesh Chander Singh Rawat
s/o Late Shri K.S. Rawat
Aged about 57 years
Designation : Section Officer
R/o 1039, Block-27, B.K.S. Marg,
New Delhi - 110001.
16. Deep Chand
s/o Late Shri Baljita
Aged about 56 years
Designation : Assistant
R/o House No. 403, Adarsh Nagar,
Uncha Gaon, Ballabhgarh
Distt. Faridabad, Haryana.
17. Basudeb Goswami
s/o Late Shri Madhusudan Goswami
Aged about 62 years
Designation : Assistant (Retired)
R/o House No. 14-B, Khasra No. 65/27,
2nd Floor, Numberdar Colony,
Burari, Delhi - 110084.
..Applicants
(By Sr. Counsel Mr. A.K. Behera with Mr.
Amrendra Pratap Singh, Advocate)
Versus
Union of India & others through:
1. The Secretary,
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
North Block, New Delhi
2. Principal Registrar
Central Administrative Tribunal
Principal Bench, 61/35, Copernicus Marg,
New Delhi
3. Secretary,
Ministry of Finance
Department of Expenditure
New Delhi
..Respondents
(By Advocate: Shri Hanu Bhaskar)
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OA No.1558/2015
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OA No.1561/2015
OA No.1561/2015
1. Rita Biswas, aged about 49 years
W/o Shri S.R. Biswas
At present working as Private Secretary
R/o N-547, Sector-8, R.K. Puram, New Delhi
2. Jugal Kishore, aged about 48 years
S/o Shri Kashmiri Lal
At present working as Private Secretary,
R/o J-886, Park Street, Talkatora Stadium,
New Delhi-110001.
3. Lalit Gosain, aged about 36 years
S/o Shri Raghubir Singh Gosain
At present working as Court Master/
Grade 'C' Stenographer
R/o House No.977, Block No.19,
Lodhi Colony, New Delhi-110003.
4. P.C. Joshi, aged about 36 years
S/o Shri Narayan Dutt Joshi
At present working as Court Master/
Grade 'C' Stenographer
R/o House No.838, Sector-9, R.K. Puram,
New Delhi
5. Ravi Kanojia, aged about 40 years
S/o late Shri Mohan Lal
At present working as Court Master/
Grade 'C' Stenographer
R/o G-1, A-211, Shalimar Garden, Ghaziabad.
6. Kedar Ram, aged about 42 years,
S/o late Shri Chandeshwar Ram
At present working as Court Master/
Grade 'C' Stenographer
R/o A-88/F-1, Dilshad Colony,
Delhi-95.
..Applicants
(By Sr. Counsel Mr. A.K. Behera with Mr.
Amrendra Pratap Singh, Advocate)
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OA No.1558/2015
With
OA No.1561/2015
Versus
Union of India & others through
1. The Secretary,
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel & Training
North Block, New Delhi
2. Principal Registrar
Central Administrative Tribunal
Principal Bench,
61/35, Copernicus Marg,
New Delhi
3. Secretary,
Ministry of Finance
Department of Expenditure
New Delhi
..Respondents
(By Advocate: Shri Hanu Bhaskar)
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OA No.1558/2015
With
OA No.1561/2015
ORDER
R.N. Singh, Member (J):
As common questions of law and facts are involved in both these OAs, with the consent of the parties, both the matters have been heard together and we proceed to dispose them of through this common order. However, for the sake of brevity, we may extract relevant facts from both the OAs. OA No.1558/2015
2. Through the medium of this Original Application (OA) filed, under Section 19 of the Administrative Tribunals Act, 1985, applicants have prayed for the following reliefs:
"That the Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned office memorandum No. PB/20/1/2007-Estt.I dated 08.04.2015 and the Notice No. PB/20/1/2007-Estt.I dated 05.09.2014 & 08.09.2014 along with letter of DOP&T dated 10/13.05.2013 with all its consequences.
ii) That the Hon'ble Tribunal may further graciously be pleased to declare that the pay fixation made in pursuance to order dated 06.07.2010 was lawful and was in accordance with the law and instructions and UO Note dated 14.12.2009 applicable to the employees of CAT and further declare that the applicants are entitled to the benefits of the said order dated 06.07.2010 with all consequences of it.
iii) That the Hon'ble Tribunal may also pass any further order or direction which it deems fit and proper in the facts and circumstances of the case.7 OA No.1558/2015
With OA No.1561/2015
iv) The costs of litigation may be granted in favour of the applicants."
3. The applicants, who are the employees of the Central Administrative Tribunal, Principal Bench, are presently working as Assistant, Court Master/Stenographer Grade 'C' and Section Officer/Court Officer on regular basis in the pay scale of Rs.5500-9000. Vide order dated 25.09.2006, their counterparts working in CSS/CSSS, who were also in the pay scale of Rs.5500-9000, got the higher pay scale, i.e., Rs.6500-10500 w.e.f. 15.09.2006. The counterparts working in CSS/CSSS were further granted the pay structure of Grade Pay of Rs.4600/- in Pay Band-2 w.e.f. 01.01.2006 vide Ministry of Finance, Department of Expenditure Office Memorandum No.1/1/2008-IC dated 13.11.2009 & 16.11.2009 followed by clarification issued vide UO Note No. 10/1/2009-IC dated 14.12.2009 regarding fixation of pay on grant of revised pay structure in respect of Assistant/Steno Grade 'C' of CSS/CSSS. Copies of OM dated 13.11.2009, 16.11.2009 and UO dated 14.12.2009 are annexed as Annexure-A-4, A-5 and A-6 respectively. The Court Masters/ Stenographers 8 OA No.1558/2015 With OA No.1561/2015 Grade 'C' of this Tribunal filed O.A. No.1165/2010 (Sunita Dutt & others v. Union of India & others) seeking to implement the order dated 25.09.2006 and re-fix their pay in higher pay scale of Rs.6500- 10500 at par with their counterparts in CSS/CSSS from 15.9.2006. In the said OA, besides fixation of pay in the grade of Rs.6500-10500 w.e.f. 15.9.2006, Grade Pay of Rs.4600/- was also sought at par with counterparts in CSS/CSSS. The said OA was disposed of in terms of Order/judgment dated 09.04.2010 with direction to the respondents to treat the said O.A. as representation on behalf of the applicants therein and decide the reliefs in the background of historical parity of staff of C.A.T. with their counterparts in CSS/CSSS by passing a reasoned and speaking order, keeping in view the decision of this Tribunal in the matter of S.R. Dheer & Ors. v. Union of India & Ors. [OA No.164/2009 decided on 19.02.2009]. It is submitted by the applicants that pursuant to implementation of the directions of the Tribunal in the aforementioned O.A., the Department of Personnel & Training issued order No.P.26011/21/2010-AT dated 06.07.2010 thereby 9 OA No.1558/2015 With OA No.1561/2015 granted the following revised pay structure w.e.f. 01.01.2006:
Designation Pre-revised pay scale Revised pay structure Pay Band Grade Pay Assistants/ Rs.5500-9000 PB-2 Stenographers Gr. revised to Rs.7450- Rs.4600 'C'/ Court Masters 225-11500) 3.1 It is pertinent to mention here that in the said order dated 06.07.2010, it has specifically been mentioned that "This issues with the concurrence of the Ministry of Finance (Department of Expenditure) vide its I.D. No.33(3)/2010-E.III (B) dated 21.6.2010 and the Integrated Finance Division (MHA) vide their Dy. No.CF-61842/Fin. II dated 5.7.2010". In the said implementation order, the respondent no.2 was requested to amend the Recruitment Rules of the above posts as per the Recruitment Rules of similar posts of CSS and CSSS. It is further submitted that as per Rule 11 of the CCS (RP) Rules, 2008 - fixation of pay in the revised pay structure subsequent to the 1st day of January, 2006 - where a Government servant continues to draw his pay in the existing scale and is brought over to the revised pay structure from the date later than the 1st day of January, 2006, 10 OA No.1558/2015 With OA No.1561/2015 his pay from the later date in the revised pay structure shall be fixed in the following manner:
"Pay in the pay band will be fixed by adding the basic pay applicable on the later date, the dearness pay applicable on that date and the pre-revised dearness allowance based on rates applicable as on 01.01.2006. This figure will be rounded off to the next multiple of 10 and will then become the pay in the applicable pay band. In addition to this, the grade pay corresponding to thepre-revised pay scale will be payable."
3.2 In Para 2(C) of the Ministry of Finance, Department of Expenditure U.O. Note dated 14.12.2009 clarifies that the Assistants/Court Masters/ Personal Assistants, who were promoted between 01.01.2006 and 31.08.2008 can opt to have their pay fixed from the date of promotion with reference to the fitment table of the upgraded pay scale i.e. pre-revised scale of Rs. 7450-11500 in which case they shall not be entitled to arrears of pay from 01.01.2006 till the date of such option. This clarification is based on the Rule-11 and Rule 5 of the CCS (RP) Rules, 2008. The respondent No.2 vide letter No. PB/20/1/2007-Estt.I dated 10.08.2010 provided copy of the Order No. P- 26011/21/2010-AT dated 06.07.2010 issued by DOP&T (annexed as A-7) pursuant to the orders dated 09.04.2010 in OA No.1165/2010 (annexed 11 OA No.1558/2015 With OA No.1561/2015 as A-5) for fixing the pay of the concerned Assistants/Stenographer Grade 'C'/Court Masters of CAT in accordance with the clarifications contained in Ministry of Finance, Department of Expenditure UO No. 10/1/2009-IC dated 14.12.2009. In response to that, applicant Nos. 1 to 7 submitted their option to continue in the existing scale of pay of their substantive post until the date of their promotion to the post of Assistant w.e.f. 21.02.2008, and applicant No. 8 as Court Master/Steno Grade 'C' w.e.f. 17.04.2008 by fixing their pay on promotion in the pre-revised scale of pay of Rs. 7450-11500 and subsequently in the revised pay structure of PB-2 with Grade Pay of Rs. 4600/- in terms of Rule 11 of the CCS (RP) Rules, 2008. Accordingly, the Principal Bench vide Order dated 30.08.2010 fixed the pay of the applicants in the promoted post of Assistant/Court Master w.e.f. 21.02.2008/ 17.04.2008 in terms of their option. 3.3 It is submitted here that the applicants had to forego the arrears of pay and allowances from 01.01.2006 till the date of their option i.e. 21.02.2008/17.4.2008. The pay of the senior officials was also stepped up at par with their 12 OA No.1558/2015 With OA No.1561/2015 juniors in terms of Govt. instructions. The applicants are drawing the said pay with regular increments since 2009. In terms of the Department of Personnel & Training letter dated 10/13.05.2013, it has been informed that the provisions contained in the Department of Expenditure U.O. Note No. 10/1/2009-IC dated 14.12.2009 are not extended to the employees of C.A.T. on the premise that the said provision is applicable only for CSS/CSSS and not to other employees. Thereafter certain employees working at Ernakulam Bench of this Tribunal filed O.A. No.856/2011 titled K.K. Vijayan & others v. The Principal Registrar, CAT & others, which was allowed in terms of the Order dated 13.07.2012 and the respondents were directed to adopt the same method of fixation of pay of the applicants as was done in the case of T. Srinivasa as on 01.01.2006, i.e., firstly in the pay scale of Rs.7450- 11500 on notional basis and actually in the pay scale of Rs.9300-34800 + Grade Pay of Rs.4600/-. Both the aforesaid decisions were challenged by the respondents - Department of Personnel & Training to the Hon'ble High Court of Kerala at Ernakulam and were disposed of with observation 13 OA No.1558/2015 With OA No.1561/2015 that the employees of C.A.T. will enjoy the benefit as has been given in the case of T. Srinivasa (supra). Thereafter on re-fixation of pay and issue of notice of recovery in terms of the Department of Personnel & Training letter dated 10/13.05.2013, Mr. T Srinivasa, Assistant, Bangalore Bench filed O.A. No.1281/2013 before the Bangalore Bench. The Tribunal, vide its Order dated 20.11.2013, stayed the impugned recovery orders and kept them in suspended animation. The matter was posted for further hearing after 14 days, i.e., on 04.12.2013. However, till date, the matter is sub judice.
3.4 A show cause notice No. PB/20/1/2007- Estt.I dated 05.09.2014 was issued by the Central Administrative Tribunal, Principal Bench asking the applicants along with other employees of the Tribunal as to why the earlier pay fixation order shall not be cancelled and excess amount paid on account of alleged wrong fixation be recovered from their salary by re-fixing their pay in terms of directions of the Ministry of Finance, Department of Expenditure and Department of Personnel & Training. The applicants submitted their reply to 14 OA No.1558/2015 With OA No.1561/2015 the aforesaid show cause notice giving the justification for not taking any action for recovery as the pay of the applicants has been correctly fixed in accordance with the Rules and Instructions on the subject. However, without considering and/or appreciating the contentions and averments made by the applicants in their replies to the show cause notice, the respondents issued the impugned order dated 08.04.2015 thereby directing to re-fix the pay downward which amounts to cancelling the earlier order dated 06.07.2010 and consequent effecting of recovery in pursuance to the said impugned order from the pay of the applicants, which is illegal, arbitrary, mala fide and against the provisions contained in Constitution of India.
OA No.1561/2015 3.5 The present Original Application has been filed by the applicants, six in numbers under Section 19 of the Administrative Tribunals Act, 1985, to challenge the Office Memorandum No.PB/20/1/2007- Estt.I dated 8.4.2015 (Annexure A/I) whereby the respondent No.2 has taken a decision to re-fix the pay of those officers/officials, whose pay has been fixed in the 15 OA No.1558/2015 With OA No.1561/2015 manner the pay of Shri T. Srinivasa, Assistant CAT, Bangalore Bench has been fixed or stepped up at par with such junior officers/officials, in accordance with the Department of Expenditure OM No.1/1/2008-IC dated 13.10.2008 and clarification issued in this regard by multiplying the existing basic pay in the pre-upgraded scale as on 01.01.2006 by a factor of 1.86 and rounding off the resultant figure to the next multiple of ten and adding the Grade Pay corresponding to the upgraded scale. Thus, vide the said impugned order, the pay fixation vide order dated 24.10.2011 has been rescinded and fresh downward fixation has been ordered resulting into recovery of pay and allowances paid to the applicants in accordance with the pay fixation order dated 24.10.2011. The said directions have been issued by the respondents after issuing a show cause notice No. PB/20/l/2007-Estt.I dated 05.09.2014 which has been duly replied by the applicants vide their representations dated 16.9.2014 but the same has been rejected without application of mind. This action on the part of the respondents- Department of Personnel & Training is totally illegal, arbitrary, unreasonable and capricious as also against the 16 OA No.1558/2015 With OA No.1561/2015 principles of natural justice. Rather the claim of the applicants is that their pay ought to have been fixed keeping in view the order dated 06.07.2010 of the Ministry of Finance.
3.6 This Original Application is also 'being preferred against the impugned Order No.P- 26012/48/2013-AT dated 20.1.2015 issued by respondent no.1 whereby the representations submitted by the applicants against the Show Cause notice dated 5.9.2014 (Annexure A/3) despite knowing fully the fact that issue relating to re-fixation of pay of the applicants is already pending before the Bangalore Bench of this Tribunal in the case of T. Srinivasa, Assistant, have been rejected without application of mind. Although the applicants have not been extended any benefits of pay fixation in terms of which pay of T. Srinivasa was fixed and in the case of A.S. Peethambaran and another vs. UOl and Anr. (OA No.1013/2011) which judgment was based upon the ratio laid down by the Ernakulam Bench of this Tribunal in K.K. Vijayan (supra) and the Writ Petition preferred by the respondents in the case of A.S. Peethambaran and another (OP (CAT) No.6 of 2014 (Z) was disposed of by the 17 OA No.1558/2015 With OA No.1561/2015 Hon'ble Kerala High Court vide its judgment dated 12.8.2014 by observing as follows:-
"....clarifying that the respondents therein will enjoy the benefits of the order of the CAT challenged before this Court, until the decision in the case of Sri. Sreenivasa of the Bangalore Bench is revised on administrative side or otherwise in accordance with law. It was in the meanwhile that the respondents herein claiming parity with that of the above employees and filed OA 1013/2011 before the Tribunal. By the impugned order, the Tribunal allowed the claim which is challenged in this original petition."
3.7 The instant Original Application is also being preferred against the impugned Show Cause Notice dated 05.09.2014 issued under the garb of OM dated 6.2.2014 issued by the respondent no. 1 whereby referring to the law laid down by the Supreme Court in the case of Chandi Prasad Uniyal and others vs. State of Uttarakhand and others, (2012) 8 SCC 417, with regard to recovery of excess payment from the employees. However, it is pertinent to mention that the ratio laid down in the said case has been revisited by the Hon'ble Supreme Court in the case of State of Punjab and others etc. Vs. Rafiq Masih (White Washer) etc. in SLP No.11527 of 2014 (Arising out of SLP (e) No.11684 of 2012) in which the Hon'ble Supreme Court has held as follows:-
18OA No.1558/2015
With OA No.1561/2015 "12. It is not possible to postulate all situations of hardship, which would govern employees on the issue of recovery, where payments have mistakenly been made by the employer, in excess of their entitlement. Be that as it may, based on the decisions referred to herein above, we may, as a ready reference, summarise the following few situations, wherein recoveries by the employers, would be impermissible in law:
(i) Recovery from employees belonging to Class-III and Class-IV service (or Group 'C' and Group 'D' service).
(ii) Recovery from retired employees, or employees who are due to retire within one year, of the order of recovery.
(iii) Recovery from employees, when the excess payment has been made for a period in excess of five years, before the order of recovery is issued.
(iv) Recovery in cases where an employee has wrongfully been required to discharge duties of a higher post, and has been paid accordingly, even though he should have rightfully been required to work against an inferior post.
(v) In any other case, where the Court arrives at the conclusion, that recovery if made from the employee, would be iniquitous or harsh or arbitrary to such an extent, as would far outweigh the equitable balance of the employer's right to recover."
3.8 The applicants have prayed for the following reliefs:
i) That the Hon'ble Tribunal may graciously be pleased to quash and set aside the impugned office memorandum No. PB/20/1/2007-Estt.I dated 08.04.2015 (Annexure A/1), Impugned Order No.P-26012/48/2013-AT dated 20.1.2015 (Annexure A/2) and Notice No. PB/20/1/2007-Estt.I dated 05.09.2014 (Annexure A/3) with all its consequences.
ii) That the Hon'ble Tribunal may further graciously be pleased to declare that the applicants are entitled to pay fixation in terms of Order dated 06.07.2010 which was lawful and was in accordance with the law and instructions and UO Note applicable to the 19 OA No.1558/2015 With OA No.1561/2015 employees of CAT and further declare that the applicants are entitled to the benefits of the said order dated 06.07.2010 with all its consequences.
iii) That the Hon'ble Tribunal may also pass any further order or direction which it deems fit and proper in the facts and circumstances of the case.
iv) The costs of litigation may be granted in favour of the applicants."
4. The brief facts of the case are that the applicants have joined/promoted as Court Master/Stenographer Grade 'C' in the pay scale of Rs.5500-9000 in the Central Administrative Tribunal, Principal Bench on different dates prior to 1.1.2006 and all of them are now working as Private Secretaries in Principal Bench except applicant no.6 at Jaipur Bench of this Tribunal. The particulars of the applicants are as follows:-
S.No. Applicant Name Date of appointment/promotion as Court Master in the pre-revised scale of Rs.5500-9000
1. Rita Biswas Adhoc Regular
2. Jugul Kishore - 28.09.2001
3. Lalit Gosain - 28.09.2001
4. P.C. Joshi 19.02.2001 20.10.2005
5. Ravi Kanojia 03.10.2000 20.10.2005
6. Kedar Ram 26.09.2000 20.10.2005 4.1 Applicants have further stated that there is an established historical parity with the employees 20 OA No.1558/2015 With OA No.1561/2015 of CSS /CSSS, as is evident from the decision of this Tribunal in the case of S.R. Dheer & Ors. Vs. Union of India and others (OA No.164/2009) decided on ·19.2.2009 and also in the case of Sunita Dutt & Ors. Vs. Union of India & Ors.
(OA No.1165/2010) decided on 09.04.2010 in which the applicants were seeking the same benefits of pay parity with the employees of CSS /CSSS on the basis of historical parity with them, this Tribunal held that the applicants therein (Private Secretaries/Court Masters of this Tribunal) have always had historical parity with their counterparts in CSS/CSSS and allowed the said OAs. It is also mentioned by the applicants that the fact of historical parity of Stenographers of this Tribunal (applicants herein) with that of their counterparts in CSS/CSSS was admitted by the respondents themselves in their Counter-Affidavit filed in the above cases.
4.2 It is further averred by the applicants that vide order dated 25.9.2006, the counterparts working in CSS/CSSS got the higher pay scale, i.e., the pay scale of Rs.5500-9000 was merged to the pay scale of Rs.6500-10500 and they have been 21 OA No.1558/2015 With OA No.1561/2015 granted such benefits w.e.f. 15.9.2006 (Annexure A/4). When the aforesaid relief had not been granted to the applicants, they filed the said O.A. No.1165/2010 (titled Sunita Dutt & others v. Union of India & others) before this Tribunal along with other colleagues seeking to implement the order dated 25.9.2006 in their cases as well and re-fix their pay in higher pay scale of Rs.6500- 10500 at par with their counterparts in CSS/CSSS from 15.9.2006. This Tribunal while disposing the said OA 1165/2010 observedthat historical parity of staff of C.A.T. in respect of Private Secretaries has already been laid at rest on implementation of directions issued in S.R. Dheer's case (supra), vide Order dated 9.4.2010 vide which the respondents were directed to treat the said O.A. as representation on behalf of the applicants therein and decide the reliefs in the background of established historical parity of staff of C.A.T. with their counterparts in CSS/CSSS by passing a reasoned and speaking order (Annexures A/5 & A/6 respectively). In implementation of the directions of the Tribunal in the aforementioned O.A., the Department of Personnel & Training issued order No.P.26011/21/2010-AT dated 22 OA No.1558/2015 With OA No.1561/2015 6.7.2010 (Annexure A/7) granted the following revised pay structure w.e.f. 1.1.2006:-
Designation Pre-revised pay Revised pay scale structure Pay Band Grade Pay Assistants/ Rs.5500-9000 PB-2 Stenographers Gr. revised to Rs.4600 'C'/ Court Masters Rs.7450-225- 11500) 4.3 It is pertinent to mention here that in the said order dated 6.7.2010, it has specifically been mentioned that "This issues with the concurrence of the Ministry of Finance (Department of Expenditure) vide its I.D. No.33(3)/2010-E.III (B) dated 21.6.2010 and the Integrated Finance Division (MHA) vide their Dy. No.CF-61842/Fin. II dated 5.7.2010".
4.4 In the said implementation order, the Principal Registrar, Central Administrative Tribunal was requested to amend the Recruitment Rules of the above posts as per Recruitment Rules of similar posts of CSS and CSSS (Annexure A/7). The respondent no.1 has issued an Office Order No.F.No.A-12015/01/2010/Admn. dated 25.11.2010 whereby the pay of one Assistant, namely, Shri T. Srinivasa, working at Bangalore Bench of the Hon'ble Central 23 OA No.1558/2015 With OA No.1561/2015 Administrative Tribunal, has been fixed whereby he has been granted the higher pay than the applicant being promoted from back date by the respondents (Annexure A/8). The applicants and others have exercised their option on 27.12.2010 regarding fixation of their pay w.e.f. 15.9.2006 in the pre- revised scale of pay of Rs.6500-10500 as has been done in the case of counterparts working in CSS/CSSS with whom the cadre of the applicants has established historical parity (Annexure A/9 (Colly)). However, the applicants and other counterparts were informed by the respondent no.2 vide Memorandum No.PB/201/200-Estt.I dated 24.10.2011 (Annexure A/10) that 'no option can be exercised on a non-existent pay scale in the Central Administrative Tribunal as opined by the FA&CAO, CAT. However, applicants' pay was being fixed in terms of Govt. of India instructions on implementation of sixth Pay Commission as informed by respondent no.1 vide their letter No.P- 26011/21/2010-AT dated 07.09.2011 (Annexure A/11). In pursuance to Govt. of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Trainings' Order No.P-26011/21/2010-AT dated 06.07.2010 issued 24 OA No.1558/2015 With OA No.1561/2015 in pursuant to the Orders in Sunita Dutt (supra) in partial modification of office orders of even number dated 12.09.2008, 27.01.2009, No.PB/1/1/2009-Estt.I dated 11.05.2009 PB/8/2/2008-Estt. II dated 09.03.2009 issued by the respondent no.2, the respondent No.2 issued Office Order No.PB/20/1/200-Estt-I dated 24.10.2011 (Annexure A/12) whereby the pay of the applicants has been stepped up at par with their junior, namely, Shri Suryaroop Kabi, Court Master, CAT, Patna Bench. Three employees working as Assistant, Court Master and UDC in the Ernakulam Bench of CAT have filed OA No.856/2011 K.K. Vijayan (supra) before the Ernakulam Bench of this Tribunal seeking declaration to the effect that they are entitled to the benefit of fitment as granted to Shri T. Srinivasa, Assistant of the Bangalore Bench of this Tribunal in terms of Annexure A7 therein and to direct the respondents to fix the applicants' pay accordingly. They had also sought a declaration that they are entitled to be granted the benefit w.e.f. 15.9.2006 and to be thus granted the scale of pay of Rs.6500- 10500 and an option to come over to the revised pay band plus GP with effect from that date, as has 25 OA No.1558/2015 With OA No.1561/2015 been granted to the Assistant/Stenographers Grade 'C' of the Central Secretariat Service/Central Secretariat Stenographers service and further sought a direction to the respondents to grant them the scale of pay of Rs.6500-10500 with effect from 15.9.2006, with a further option to come over to the revised band plus GP with effect from 15.9.2006, with all consequential benefits of arrears of pay and allowances arising therefrom. The Ernakulam Bench of this Tribunal after elaborate discussion/consideration have allowed the said OA vide Order dated 13.7.2012 (Annexure A/13) with the following directions:-
"13. Arguments were heard and documents perused. The matter is not complex. The claim of the applicants is that the manner in which the Bangalore Bench had fixed the pay of Shri T. Srinivasa should be adopted in the pay fixation of the applicants as well. It is not the case of the respondents that the pay fixed by the Bangalore Bench is erroneous. Once the manner of fixation of pay is held not erroneous, justice demands that the same is adopted in all identical cases. Admittedly, the cases of Shri T. Srinivasa and the applicants in the present O.A. are identical. Be it promotion to the post of Assistant, or financial upgradation to the pay scale of Assistant, as long as both are prior to 01-01-2006, fixation of pay as on 01-01-2006 in the pay scale of Rs 7,450 - 11,500 first and thereafter, fixation in the revised scale of Rs 9300 - 34500 plus grade pay of Rs 4600 should be uniform.
14. In view of the above, the O.A. is allowed. Respondents are directed to adopt the same 26 OA No.1558/2015 With OA No.1561/2015 method of fixation of pay of the applicants as on 01-01-2006 first in the pay scale of Rs 7450 - 11500 notionally and actually thereafter in the pay scale of Rs 9300 - 34500 plus grade pay of Rs 4600/- as has been adopted in the case of T. Srinivasa of Bangalore Bench. This order may be complied with, within a period of three months from the date of communication of this order.
15. Respondents may also consider this order as a judgment in rem and apply the same to others similarly situated, as the same would avoid multiplicity of litigation. In fact, the Apex Court in a number of cases and the V CPC in para 126.5 have emphasized such a practice. It is appropriate to cite the same as hereunder:-
(a) The Apex Court as early as in 1975 in the case of AmritLal Berry v. CCE, (1975) 4 SCC 714 , held as under:-
We may, however, observe that when a citizen aggrieved by the action of a government department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to court.
(b) In Inder Pal Yadav v. Union of India, (1985) 2 SCC 648, the Apex Court has held as under:-
"... those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court.
(c) The V Central Pay Commission in its recommendation, in regard to extension of benefit of court judgment to similarly situated, held as under:-
"126.5 - Extending judicial decisions in matters of a general nature to all similarly placed employees. - We have observed that frequently, in cases of service litigation 27 OA No.1558/2015 With OA No.1561/2015 involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed and others v. UOI & others (O.A.Nos. 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh v. UOI, [ (1992) 19 ATC 94 (SC) ], dated 20-7-1998; K.I. Shepherd v. UOI [(JT 1987 (3) SC 600)]; Abid Hussain v. UOI [(JT 1987 (1) SC 147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee."
(d) In a latter case of Uttaranchal Forest Rangers' Assn. (Direct Recruit) v. State of U.P.,(2006) 10 SCC 346, , the Apex Court has referred to the decision in the case of State of Karnataka vs C Lalitha(2006) 2 SCC 747 as under:
"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently."28 OA No.1558/2015
With OA No.1561/2015 4.5 Further another OA filed by employees (Court Masters) working in Ernakulam Bench of this Tribunal, A.S. Peethambaran (supra) was allowed vide Order dated 19.9.2012 (Annexure A/14) in which the same directions had been given to the respondents as has been given in OA No.1013/2011. The applicants submitted their representations on 21.3.2013 requesting the respondents to grant them the same benefits as has been granted in the case of A.S. Peetambaran and Shri Sebastian Antony, Court Masters working at Ernakulam Bench (applicants in OA No.856/2011) (supra) as the respondents have implemented the Orders passed in their cases. This matter was referred to the DOP&T and the DOP&T vide letter dated July, 2013, which was communicated to the applicants vide letter of respondent no.2 dated 11.7.2013, has informed that as the pay of Shri K.K. Vijayan, Assistant, and Shri A.S. Peetambaran, Court Masters, has been fixed provisionally and the matter was to be taken up for filing Writ Petition in Hon'ble High Court, the decision on the issue could not be taken as final for the time being and requested not to extend any benefit of pay fixation, given in the case of Shri 29 OA No.1558/2015 With OA No.1561/2015 K.K.Vijayan and Shri A.S. Peetambaran, on the basis of the orders of this Tribunal in OA Nos.856/2011 and 1013/2011 to other officials. This action of the respondents tantamounts to treating the equals unequally. They cannot approbate and reprobate simultaneously. If a benefit has been extended to the similarly situated, it cannot be denied to the applicants who are also similarly situated. It is further averred by the applicants that the representations submitted by the applicants seeking grant of same benefits as has been granted to K.K. Vijayan and others (supra) were considered by the respondent no.2 vide Memorandum dated 16.4.2013 informed that "a reference has already been sent to the DOP&T on 9.4.2014 seeking their advise as to whether we may consider grant of similar benefits to other similarly placed officials in the grade of Assistant/Court Masters by stepping up their pay at par with their junior in whose cases implementation has been done subject to outcome of WP proposed to be filed before the Hon'ble High Court of Kerala in OA-886/2011 (856/2011 sic) in the matter of Shri K.K. Vijayan & Ors. vs. UOI & Ors. However, reply is still awaited from their end. 30 OA No.1558/2015
With OA No.1561/2015 On receipt of clarification from the DOP&T further action in the matter will be taken". (Annexure A/15). However, when the Hon'ble High Court of Kerala at Ernamulam has re-affirmed the decision of the Tribunal of CAT, Ernakulam Bench in OA No.856/2011 decided on 13.7.2012, by its Order dated 30.7.2013 in OA (CAT) No.2620 of 2013 (Z) in which the Hon'ble High Court of Kerala has clarified in the concluding para that the respondents will enjoy the benefit of the impugned order unless the issue in the case of Shri T. Srinivasa is visited on the administrative side or otherwise, in accordance with law, which is yet to be visited. Thus, on the somersault that the decision in the case of T. Srinivasa is not final the respondents cannot withdraw the benefit already extended to the applicants after a period of about five years, which is also barred in terms of the decision rendered by the Hon'ble Apex Court in the case of Rafiq Masih (White Washer) etc. (supra). Vide letter dated 9.9.2013 (Annexure A/17 (Colly)), communicated the decision of the respondent no.1 dated 6.9.2013 (Annexure A/17 (Colly)) to the Bangalore Bench, whereby stating that the pay fixation of Shri T. Srinivasa vide 31 OA No.1558/2015 With OA No.1561/2015 Bangalore Bench Order dated 25.11.2010 is not in accordance to existing Government instruction/rules in the matter and requesting the respondent no.2 to withdraw the said order dated 25.11.2010 and thereafter send a fresh proposal if any for consideration for allowing the benefit of fixation of pay under Department of Expenditure UO Note dated 14.12.2009 (Annexure A/16) to CAT employees also. In pursuance of the aforesaid order, the pay of Shri T. Srinivasa has been refixed vide order passed by the Bangalore Bench of this Tribunal vide Order dated 9.10.2013 (Annexure A/18). Feeling aggrieved by the aforesaid order, the said colleague of Bangalore Bench has filed OA No.1281/2013 (T. Srinivasa vs. P. R. CAT and another) in which he has challenged the order dated 7.10.2013, 10/13.5.2012 and 7/10.11.2013 (Annexure A/19 (colly.). The Bengalore Bench of the Tribunal, vide its Order dated 20.11.2013 (Annexure A/20) passed in the said OA, stayed the impugned recovery orders and kept them in suspended animation. The matter was posted for further hearing after 14 days, i.e., on 4.12.2013. However, till date, the said matter is pending adjudication before this Tribunal. On 5.9.2014 32 OA No.1558/2015 With OA No.1561/2015 (Annexure A/2), the respondent no.2 issued a show cause notice to the applicants as to why in terms of provisions contained in DOP&T OM No.18/26/2011-Estt.(Pay-I) dated 6.2.2014 (Annexure A/21) the applicants' pay fixation order shall not be cancelled and excess amount paid on account of wrong fixation be recovered from the applicants' salary by re-fixing their pay. In pursuance of the aforesaid notice, the applicants have submitted their representations on 16.9.2014 (Annexure A/22) to respondent no.2 explaining the reasons as to why his pay should not be re- fixed rather it should be fixed in terms of Order dated 6.7.2010 (Annexure A-7) which was passed in implementation of the order of this Tribunal passed in OA No.1165/2010 and MA 866/2010 dated 9.4.2010 as the same has not been done in the garb of pendency of the similar nature of cases before other Benches. That, the aforesaid OA 1281/2013 is still pending for adjudication. On 8.4.2015 the respondent No.1, without considering and/or appreciating the contentions and averments made by the applicants in the said replies to the show cause notice, particularly knowing full very well that the similar issue in the 33 OA No.1558/2015 With OA No.1561/2015 case of T. Srinivasa at Bangalore Bench is pending consideration and stay is operating against them have still issued the impugned order in defiance of the interim order passed in the case of T. Srinivasa, thereby ordering recovery from the pay of the applicants, which is not only illegal, arbitrary, malafide but also against the provisions contained in Constitution of India and also against the well-settled law declared by the Judicial Fora in numerous judicial pronouncements.
5. Shri A.K. Behera, learned Senior Counsel, assisted by Mr. Amarendra Pratap Singh, Advocate would contend that the impugned memorandum ordering downward re-fixation and consequential recovery from the salary of the applicants is illegal, arbitrary, against the provisions contained in Constitution of India, violative of Articles 14 and 16 of the Constitution of India and against the law laid down in various judicial pronouncements. It may be noted here that the order dated 06.07.2010 fixing the pay of the applicants was done consciously by the respondents being fully aware about the parity between the employees of CAT and CSS/CSSS as laid down in S.R. Dheer's case (supra). The UO note dated 14.12.2009 was also 34 OA No.1558/2015 With OA No.1561/2015 consciously and lawfully applied at the time of issuance of the order dated 06.07.2010. Thus, there was no error or illegality in the said order dated 06.07.2010. Therefore, the show cause notice dated 05.09.2014 and the impugned memorandum dated 08.04.2015 being totally contrary to law deserve to be set aside. Rather, the impugned memorandum amounts to contempt of this Tribunal and is liable to be set aside on the said count alone.
5.1 Mr. Behra would further contend that the impugned memorandum is against the law on the subject, as the applicants have the established parity with their counter-parts in CSS/CSSS by various judicial pronouncements, and the benefit granted in pursuance thereof cannot be withdrawn merely on the ground that the provisions contained in the aforesaid U.O. Note cannot be extended to C.A.T. employees/applicants without there being any basis for the same.
5.2 Mr. Behera would urge that once the aforesaid Order of the Tribunal passed in Sunita Dutt's case (supra) was neither challenged before the Hon'ble High Court nor any review petition has 35 OA No.1558/2015 With OA No.1561/2015 been filed before the Tribunal itself and the order dated 06.07.2010 was complied with/implemented by the Department of Personnel & Training with concurrence of the Department of Expenditure, keeping in view the fact that the U.O. Note of Department of Expenditure dated 14.12.2009 was already there, the impugned memorandum asking the 2nd respondent to re-fix the pay of applicants and recover the amount from their salary is uncalled for in view of the fact that the similar memorandum has already been stayed by the Bangalore Bench of the Tribunal in terms of the Order dated 20.11.2013.
5.3 Mr. Behra would contend that another set of employees, namely, Lower Division Clerks of this Tribunal, have also approached this Tribunal by filing O.A. No.701/2013 titled Kapil Kumar Setia & Ors. v. Union of India & Ors., claiming the same pay scales as have been granted to the employees in District Courts. In that matter, the respondents, i.e., Department of Personnel & Training, filed their counter reply taking a clear stand therein that the LDCs cannot be granted the same pay scales as have been granted to such 36 OA No.1558/2015 With OA No.1561/2015 employees in District Courts for the reason that the employees of this Hon'ble Tribunal are having historical parity with CSS/CSSS employees and they cannot have both the pay scales. 5.4 Mr. Behra further argued that the Department of Personnel & Training in terms of the directions of this Tribunal in S.R. Dheer (supra) has implemented the directions admitting the historical parity between the employees of this Tribunal with their counterparts in CSS/CSSS and in terms of the directions of this Tribunal in Sunita Dutt (supra), the Department of Personnel & Training has implemented the directions thereby granting pay scale of Rs.7450/- w.e.f. 1.1.2006 along with Grade Pay of Rs.4600/-, taking a different stand now that the said U.O. Note is not applicable to the employees of the Tribunal, is not sustainable in law. When they themselves have granted the pay scale of Rs.7450/- w.e.f. 01.01.2006 to the employees of C.A.T. treating them having the historical parity at par with their counterparts in CSS/CSSS and when the directions contained in the cases of S.R. Dheer and Sunita Dutt (supra) were not challenged 37 OA No.1558/2015 With OA No.1561/2015 before the Hon'ble High Court or even the Review Applications were not filed before this Tribunal and those directions stood implemented by the respondents, they are now estopped from taking a new stand which amounts to total summersault is not permissible in law.
5.5 It was further urged by Mr. Behra, that the impugned order of recovery is issued directly against the dictum of Hon'ble Supreme Court in the case of State of Punjab & others etc. v. Rafiq Masih (White Washer) etc. (Civil Appeal No.11527/2014 with connected Appeals) decided on 18.12.2014 wherein it has been observed as follows:-
"First and foremost, it is pertinent to note, that this Court in its judgment in Syed Abdul Qadir's case (supra) recognized, that the issue of recovery revolved on the action being iniquitous. Dealing with the subject of the action being iniquitous, it was sought to be concluded, that when the excess unauthorised payment is detected within a short period of time, it would be open for the employer to recover the same. Conversely, if the payment had been made for a long duration of time, it would be iniquitous to make any recovery. Interference because an action is iniquitous, must really be perceived as, interference because the action is arbitrary. All arbitrary actions are truly, actions in violation of Article 14 of the Constitution of India. The logic of the action in the instant situation, is iniquitous, or arbitrary, or violative of Article 14 of the Constitution of India, because it would be almost impossible for an employee to bear the financial burden, of a refund of payment received wrongfully for a long span of time. It is apparent, 38 OA No.1558/2015 With OA No.1561/2015 that a government employee is primarily dependent on his wages, and if a deduction is to be made from his/her wages, it should not be a deduction which would make it difficult for the employee to provide for the needs of his family. Besides food, clothing and shelter, an employee has to cater, not only to the education needs of those dependent upon him, but also their medical requirements, and a variety of sundry expenses. Based on the above consideration, we are of the view, that if the mistake of making a wrongful payment is detected within five years, it would be open to the employer to recover the same. However, if the payment is made for a period in excess of five years, even though it would be open to the employer to correct the mistake, it would be extremely iniquitous and arbitrary to seek a refund of the payments mistakenly made to the employee."
5.6 Mr. Behera has contended that the pay of applicants was fixed without any misrepresentation on the part of the applicants. Therefore, no recovery/deduction can be ordered as per the dictum of the Hon'ble Supreme Court in Shyam Babu Verma & others v. Union of India & others, 1994 SCC (L&S) 683, which has further been followed by the Hon'ble Supreme Court in State of Punjab & others etc. v. Rafiq Masih (White Washer) etc. (Civil Appeal No.11527/2014 with connected Appeals) decided on 18.12.2014 (supra).
5.7 Mr. Behera has further urged that in paragraphs 3.1.9 and 7.32.15 of the Report of the 6th Central Pay Commission, the parity between the 39 OA No.1558/2015 With OA No.1561/2015 Assistants and Stenographers of the C.A.T. with that of Assistants and Stenographers in CSS/CSSS has already been recommended. Hence the impugned order for recovery, which directs re- fixation of the pay of the applicants on the ground that the Department of Expenditure has clarified that the U.O. dated 14.12.2009 is not applicable to the employees of the Tribunal is unjust, arbitrary and the very basis for re-fixation is illegal and, therefore, all the impugned orders challenged in the present Original Application are liable to quashed and set aside.
5.8 Shri Behera, learned senior counsel further argued that the respondents have tried to disturb the parity of Assistant and Stenographers Grade 'C'/Court Masters and Section Officers and Private Secretaries of this Tribunal with that of their counterparts in CSS/CSSS. The first such attempt took place in the year 1992 when the pay scale of Assistant in CSS and Stenographers Grade 'C' in CSSS was enhanced to Rs.1640-2900 from Rs.1400-2600 w.e.f. 01.01.1992. Similarly the Section Officer in the CSS and Private Secretary in CSSS the pay scales were enhanced to Rs.300- 40 OA No.1558/2015 With OA No.1561/2015 4500 from Rs.2000-3500 w.e.f. 01.01.1992. However, the same was not extended to the Assistant/Court Master/Stenographers Grade C in CAT as well as Section Officers/Court Officers/Private Secretaries in CAT. Against the said disparity in the pay scale the Assistant/Court Master/Stenographers Grade 'C' as well as Section Officers/Court Officers/Private Secretaries in CAT made representation for grant of enhanced pay scale at par with their counterparts in CSS and CSSS. However, when the said representation was rejected it led to filing of OA No.178/1992 before the Cuttack Bench and similar OA No.592/1992 before the Principal Bench. These OAs were allowed restoring the parity between the Assistant/Court Master/Stenographers Grade C as well as Section Officers/Court Officers/Private Secretaries in CAT with that of their counterparts in CSS/CSSS. The Government accepted the verdict of this Tribunal in OA No.178/1992 of Cuttack Bench and issued order dated 29.10.1992 granting the pay scale of Rs.1640-2900 to the Assistant/Court Master/Stenographer Grade C w.e.f. 01.01.1992. Thus the parity of Assistant/Court Masters of CAT was restored. 41 OA No.1558/2015
With OA No.1561/2015 Similarly, Section Officer/Court Officer/Private Secretary of CAT filed similar OA No.777/1992 titled S.K. Sareen v. UOI before the Principal Bench of the Tribunal which was allowed on 20.12.1999. Against the same the Union of India filed W.P. (C) no.250/2000 which was dismissed by the Hon'ble High Court of Delhi on 19.04.2002. Against the said decision of the Hon'ble High Court the Union of India filed SLP No.1565/2003 which was dismissed on 18.02.2003. In compliance thereof, the respondents issued order dated 09.02.2005 granting pay scale of Rs.3000-4500 to the Section Officer/Court Officer/Private Secretary with the Section Officer and Private Secretary in CSSS and thus restored the parity. The second such attempt made was on 26.10.2006 when Govt. of India introduced Non-Functional Selection Grade (NFSG) of CSS and CSSS Section Officer/Private Secretary. Since this NFSG was not extended to the corresponding employees of CAT, OA No.425/2006 came to be filed before the Ernakulam Bench of the Tribunal. While the case was pending, meanwhile, recommendations of 6th CPC recommended complete parity between employees of CAT and corresponding employees of CSS/CSSS. On 42 OA No.1558/2015 With OA No.1561/2015 26.08.2008 the Ernakulam Bench allowed OA No.425/2006 and directed the Govt. to pay the difference of pay or grant NFSG to the corresponding employees of CAT. In August, 2008, Government accepted the recommendation of 6th CPC. The third such attempt to disturb the parity was when despite acceptance of the recommendation of 6th CPC, the Govt. vide its order dated 11.09.2008 directed CAT to fix the pay of its employees as a non-secretarial organization and not at par with the CSS and CSSS. Feeling aggrieved, the employees of CAT in the category of Private Secretary/Section Officer/Court officer filed OA No.164/2009 titled S.R. Dheer (supra) where the Tribunal granted an interim order to fix the pay applicants therein (PS/SO/CO) in the same pay scales as that of their counterparts in CSS and CSSS. The said OA was decided in favour of the applicants restoring complete parity between PS/SO/CO of CAT with that of SO/PS in CSS and CSSS. Following the said judgment in S.R. Dheer (supra) the Court Master/Stenographer Grade C/Assistant in CAT filed OA No.1165/2010 - Sunita Dutt & Ors. (supra) which was disposed of by the Tribunal in terms of the directions 43 OA No.1558/2015 With OA No.1561/2015 contained in S.R. Dheer (supra) directing the respondents to examine the representation filed by the applicants. The said judgment has attained finality. Following the said decision, the pay fixation of applicants was done retrospectively w.e.f. 01.01.2006 by order dated 06.07.2010 and while doing so Ministry of Finance, Department of Expenditure as well as the integrated finance division, MHA, gave concurrence as reflected in para 2 of the said pay fixation order. It may be relevant to note here that at the time of fixation of pay scale in respect of employees of CAT UO note dated 14.12.2009 was very much in existence and was duly taken into consideration before such fixation of pay. Now, at this stage, respondents are estopped from taking a somersault under the guise that the said UO note is not applicable to employees of CAT and is applicable only to the employees of CSS/CSSS, is not sustainable in the eyes of law. There was yet another attempt to disturb the parity when the said pay and consequential benefits arising thereof remain in force w.e.f. 01.01.2006 to 05.09.2014, when the respondents issued show cause notice for cancellation of the pay fixation order and re-fixing 44 OA No.1558/2015 With OA No.1561/2015 the pay at the level of non-secretarial organization. In addition, the respondents referred to OA No.1281/2013 filed by. T. Srinivasa (an OA which was filed subsequent to pay fixation of the applicants) to which the applicants were not parties. The applicants gave reply to the show cause notice stating that there is historical parity between the posts of Assistant/Section Officer/Court Officer in Tribunal with that of Assistant/Section Officer in CSS and Court Master/Stenographer Grade C/Private Secretary in the Tribunal with that of Stenographer Grade C/PA/Private Secretary in CSSS. Thus, the basis of show cause notice is not sustainable as the historical parity and all the previous attempts to disturb the parity had been judicially negated. Moreover, the pay of the applicants has not been fixed on the basis of any order passed in the OA filed by T. Srinavasa which was filed subsequently, wherein the applicants were not even parties.
6. Pursuant to the notices issued by this Tribunal, the respondents filed their reply wherein they have vehemently opposed the contentions of the applicants. Mr. Hanu Bhaskar, learned 45 OA No.1558/2015 With OA No.1561/2015 counsel appearing for the respondents with the assistance of the averments made in the counter reply has submitted that in view of the revision of pre-revised pay scale of Assistants from Rs.5500- 9000 to Rs.6500-10500 w.e.f. 15.09.2006 during the pendency of VI Central Pay Commission's recommendations and subsequent upgradation of Grade Pay from Rs.4200/- to Rs.4600/ by the Government, a different formula for fixation of pay was to be allowed in the case of those holding the post of UDC as on 01.01.2006 and promoted as Assistant between 01.01.2006 and 31.08.2008 and those who opted to switch over to revised pay scale from the date of promotion. Due to this peculiarity, it has been provided in para 2 (C) of the ID Note dated 14.12.2009 that these employees, if they so opt, may have their pay fixed from the date of promotion with reference to the fitment table corresponding to pre-revised pay scale of Rs.7450- 11500 without any arrears from 01.01.2006 till the date of option. Mr. Bhaskar further submitted that while there were two pre-revised pay scales i.e. Rs.5500-9000 and Rs.6500-10500 drawn by the Assistants and PAs of Central Secretariat between 01.01.2006 and date of notification of the CCS (RP) 46 OA No.1558/2015 With OA No.1561/2015 Rules, 2008, i.e., 29.08.2006, the pay scale drawn by the Assistants/Court Masters of CAT from 01.01.2006 to 29.08.2008 was only Rs.5500-9000. As such, the scenario that existed in the case of Assistants of CSS and Personal Assistants of CSSS did not exist in case of applicants. In view of this, the applicants cannot claim to extend them the benefit of Ministry of Finance's UO Note dated 14.12.2009. Their pay fixation is required to be regulated in terms of Rule 7 of CCS (RP) Rules, 2008.
6.1 Mr. Bhaskar further submitted that pay of Assistants and Steno Grade C/Court Masters of this Tribunal had been fixed in the upgraded scale of Rs.7450-11500 (PB 2 of Rs.9300-34800) plus Grade Pay of Rs.4600/- in terms of the note issued by Ministry of Finance, Department of Expenditure, Implementation Cell U.O. No.10.1.2009-IC dated 14.12.2009 subject to vetting by the Audit and in case of overpayment, the same was required to be recovered from the individual concerned vide office order dated PB/20/1/2007-Estt.I dated 30.08.2010. It is further submitted that the Department of 47 OA No.1558/2015 With OA No.1561/2015 Personnel & Training, New Delhi vide letter dated 10/13th may, 2013 has clarified that the provisions contained in their UO note dated 14.12.2009 are not extended to officials of CAT for fixation of pay, as this provision is applicable only for CSS/CSSS and not to other employees and as such their pay are to be fixed in accordance with OM dated 13.10.2008 of Department of Expenditure, according to which fixation of pay for those posts which have been upgraded as a result of recommendation of the 6th CPC is to be undertaken in the manner prescribed in accordance with clause (A)(i) and (ii) of Rule 7 of the CCS (RP) Rules, 2008 by multiplying the existing basic pay i.e. in the pre-revised scale as on 01.01.2006 by a factor of 1.86 and adding the grade pay corresponding to upgraded scale. Accordingly, the pay fixation orders No.PB/20/1/2007-Estt.I dated 30.08.2010, 25.11.2010, 21.09.2011 and 15.12.2011 respectively issued by CAT, Principal Bench were thereby treated as cancelled vide office memorandum dated 08.04.2015 in terms of DoPT orders and fresh pay fixation granted by this Tribunal vide its order dated 27.04.2015 in the instant OA.
48OA No.1558/2015
With OA No.1561/2015 6.2 Mr. Bhaskar further submitted that Mr. K.K. Vijayan, Assistant of CAT, Ernakulam Bench filed OA No.856/2011 before this Tribunal for fixation of his pay in the upgraded scale at par with Mr. T. Srinivasa of CAT, Bangalore Bench, in terms of instructions contained in Ministry of Finance, Department of Expenditure UO dated 14.12.2009 from the date of his promotion. The aforesaid OA was allowed and the respondents were directed to adopt the same method of fixation of pay of the applicants as on 01.01.2006 first in the pay scale of Rs.7450-11500 notionally and actually thereafter in the pay scale of Rs.9300- 34500 plus grade pay of Rs.4600/- as has been adopted in the case of Mr. T. Srinivas of Bangalore Bench. The said order of this Tribunal was challenged before the Hon'ble High Court of Kerala which was decided on 30.07.2013 with the directions that the respondents (applicants in OA- 856/2011) will enjoy the benefit of the impugned orders unless the decision in the case of Shri T. Srinivasa is visited on administrative side, in accordance with law. Accordingly, the pay fixation order of Sh. T. Srinivas was revisited on administrative side and pay had been re-fixed as 49 OA No.1558/2015 With OA No.1561/2015 per rules. This was challenged by Mr. T. Srinivasa before Bangalore Bench in OA No.1281/2013, where the Bangalore Bench has granted interim stay. Mr. Bhaskar submitted that the stay granted by Bangalore Bench is personal to Mr. T. Srinivasa and does not hold any bearing on the show cause notices issued to the applicants. Hence, the impugned memo issued by the respondents to the applicants on 08.04.2015 is in order.
7. The applicants have filed the rejoinder, wherein they have refuted the contentions raised by the respondents and have reiterated their averments made in the OA.
8. We have carefully considered the rival contentions of the parties and gone through the pleadings on record.
9. The questions that arise for consideration are:
i) whether the respondents under the garb of UO note dated 14.12.2009 can disturb the historical parity of the employees of the Central Administrative Tribunal with that of their counterparts in CSS/CSSS, which had been 50 OA No.1558/2015 With OA No.1561/2015 maintained by the successive Pay Commissions, right from 4th Central Pay Commission upto 7th Central Pay Commission and upheld by the numerous decisions of this Tribunal, which stood implemented on affirmation upto the level of Supreme Court and attained finality?
ii) Whether the decision of this Tribunal in the case of T. Srinavasa has any effect on applicants, particularly when they were not parties to it and matter is still sub-judice?
10. The main ground taken by the respondents in denying the benefit of the UO note dated 14.12.2009 is that the provisions contained therein are not extended to employees of CAT for fixation of pay, as the same are applicable only to CSS/CSSS employees. On the other hand, the claim of the applicants is that they have had historical parity with their counter-parts, as held by this Tribunal in numerous judicial pronouncements and, as such, they cannot be denied the benefit thereof merely on the ground that the UO note is applicable to employees of CSS/CSSS only.
51OA No.1558/2015
With OA No.1561/2015
11. Before proceeding further, we may notice some of the decisions, wherein this Tribunal has upheld the historical parity of the employees of this Tribunal with that of their counter-parts in CSS/CSSS right from IV CPC.
12. The DoPT issued an OM on 31.07.1990 granting the pay scale of Rs.1640-2900 in place of Rs.1400-2600 to the employees of CSS/CSSS, ignoring the claim of the employees of the CAT. Being aggrieved by that OM, the Stenographers Grade 'C'/Court Masters represented before the Government to grant revision of pay in their cases also since from the very inception of the Tribunal they are on equal footing and, hence, cannot be denied the revised pay scale of Rs.1640-2900. Their representations were, however, rejected without giving any proper justification. The said OM dated 31.07.1990 came to be challenged in OA no.2865/1991 titled S.R. Dheer and Ors. v. Union of India & Anr., wherein the issue of revision of pay scale of Assistants and Stenographers Grade 'C'/Court Masters in the CAT from Rs.1400-2600 to Rs.1640-2900 was raised and on 04.02.1993 a direction was issued by this Tribunal to consider 52 OA No.1558/2015 With OA No.1561/2015 revision of pay scale notionally from 01.01.1986 and effectively from a date not later than 1st January, 1992. It was observed in the said judgment that the Stenographers Grade 'C'/Assistants in the Tribunal were in comparable grades prior to the order of 31st July, 1990. They had the same classification (Group B) and pay scale prior to 1990. The recruitment qualifications of Stenographers Grade C/Assistants are the same as those of their counter-parts in the CSS/CSSS; the feeder posts from which they are promoted have the same qualifications; the recruitment qualifications for feeder posts are also the same; and similar scales exist for superior posts. The Tribunal further observed that the law is well settled on the point that equal pay cannot be denied on the ground that mode of recruitment was different. The Tribunal also found that no additional duties and responsibilities were entrusted to the Stenographers/Assistants in the CSS/CSSS so as to make a distinction. When these directions were not complied with, it led to filing of CCP No.263/1993. However, during the course of hearing, the DoPT re-examined the entire question and passed an order on 29.10.1993 53 OA No.1558/2015 With OA No.1561/2015 revising the higher pay scale of Rs.1640-2900 w.e.f. 01.01.1992. It is pertinent to mention here that one of the employees, namely, Shukdev Sarangi had also filed a case before the Cuttack Bench of the Tribunal wherein the respondents were directed to grant a higher pay scale of Rs.1640-2900 w.e.f. 01.01.1986 with all arrears of pay, which came to be challenged by the Union of India before the Hon'ble Supreme Court. Under these circumstances, the said CCP was closed with liberty to either party to move for revival of the contempt proceedings, if necessary, in the light of the decision rendered by the Hon'ble Supreme Court in the SLP filed by the Union of India against the judgment of the Cuttack Bench. However, the decision of the Tribunal granting higher pay scale of Rs.1640-2900 was affirmed by the Hon'ble Supreme Court and, as a result thereof, DoPT vide its letter dated 29.10.1993 regarding revision of pay scale of Stenographers Grade C in CAT in compliance with the directions of the Tribunal at par with their counterparts in CSS/CSSS principally agreed to extend the revision of pay scale and in that process suggested amendment of the recruitment rules to bring the Stenographers 54 OA No.1558/2015 With OA No.1561/2015 Grade C/Court Masters of the Tribunal at par with their counter-parts in CSSS. As a result thereof, the recruitment rules have undergone amendment vide Gazette (Extraordinary) Notification dated 25.10.1994 and all the Stenographers Grade C/Courts Masters had been granted the revised pay scale of Rs.1640-2900, which as a replacement scale on the basis of the recommendations of the 5th Central Pay Commission was made at Rs.5500- 9000. It is pertinent to note that the parity between the pay scales of Stenographers Grade C/Court Masters of the Tribunal with that of Assistants and Stenographers Gr. C/PAs of the CSS/CSSS was maintained by the V CPC and even thereafter by VI CPC. It would also be relevant to mention here that an OM was issued by the DoPT granting a higher pay scale of Rs.3000-4500 in place of Rs.2000-3500 to the Private Secretaries (PSs), who are attached with the Secretary level officers. Accordingly, PSs who were attached with Hon'ble Chairman/Vice Chairmen in the Tribunal made representations to the Government that they should also be granted the same pay scale on the principle of 'equal pay for equal work' . However, their representations were rejected without giving 55 OA No.1558/2015 With OA No.1561/2015 any proper justification. Being aggrieved, one of the employees, viz. Mr. S.K. Sareen filed OA No.777/1992 before the Principal Bench of the Tribunal, which was allowed vide order dated 20.12.1999 and got affirmed up to the level of Hon'ble Apex Court. However, in spite of this, DoPT had not granted the revised pay scale. Under such circumstances, Mr. Sareen had no other alternative remedy except to file Civil Contempt Petition No.405/2003. When the said petition was taken up, the directions were given to the respondents to again consider and grant the revised pay scale to the applicant therein. Thereafter, order dated 09.05.2002 came to be passed revising the pay scales from Rs.2000-3500 (pre-revised) to Rs.3000- 4500 (pre-revised) (now Rs.10000-15200) and 16 posts of PPS had been upgraded.
13. When the Private Secretaries and Section Officers of this Tribunal were deprived of the Grade Pay of Rs.4800/- in Pay Band-2 and on completion of four years' service, the Grade Pay of Rs.5400/- in Pay Band-3 despite the historical parity being maintained since inception of the Tribunal in 1985 with their counterparts in CSS/CSSS, they filed 56 OA No.1558/2015 With OA No.1561/2015 OA No.164/2009 titled S.R. Dheer & Ors. v. Union of India & Ors. This Tribunal, after hearing counsels for the parties, vide order dated 19.02.2009 allowed the OA. We may, at this stage, reproduce the relevant parts of the order of this Tribunal, which reads as follows:
"6. With the above backdrop of trite law, this OA has been filed by a group of Private Secretaries and Section Officers working in the Principal Bench of the Central Administrative Tribunal. Though a challenge has been made to orders passed by the respondent No. 2, on 11.9.2008 and 23.10.2008, addressed to respondent No.3, whereby it has been communicated that till a final decision is taken by the Ministry of Finance and necessary amendments are carried out in the recruitment rules, they may be accorded the replacement scales as approved consequent upon acceptance of recommendations of the VI Central Pay Commission, the grievance of applicants is that despite a historical parity being maintained since inception of the Tribunal in 1985 with their counterparts in Central Secretariat Service/Central Secretariat Stenographers Service (hereinafter referred to as CSS/CSSS), they have been deprived of the Grade Pay of Rs.4800/- in Pay Band-2 and on completion of four years' service, the Grade Pay of Rs.5400/- in Pay Band-3. Therefore, they have prayed for a declaration that the action of Respondent Nos. 1 and 2 is arbitrary, discriminatory, illegal and violative of Articles 14 and 16 of the Constitution, with a further declaration that PSs/SOs of the CAT have always had a historical parity with their counterparts in CSS/CSSS and are entitled to the Grade Pay of Rs.4800/- and 5400/- on completion of four years service. They have also prayed for quashing and setting aside the orders dated 11.09.2008 and 23.10.2008 and for a direction to the respondents to grant the aforesaid Grade Pay with all consequential benefits w.e.f. 1.1.2006, along with interest on delayed payment.
8. From the above, it is clear that from the very inception of the Tribunal in 1985, there has been parity between the employees of the CAT with that of their counterparts in the CSS/CSSS and the only disparity, which cropped up was grant of pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade 'C' in the Central Secretariat. Assistants and 57 OA No.1558/2015 With OA No.1561/2015 Stenographers Grade 'C' in CAT represented to the Government for revision of their pay scale to Rs.1640- 2900 from Rs.1400-2600, to bring them at par with the corresponding categories in CSS/CSSS. However, their representations were rejected, which led to filing of OA Nos. 2865/1991, 529/1992 as well as OA- 178/1992 before the Principal Bench and Cuttack Bench of the Tribunal. The aforesaid OAs were allowed by the Tribunal, directing the respondents to consider grant of revised pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade 'C' of the CAT. Resultantly, Government of India by letter No.G.26012/92-A dated 29.10.1993 granted the pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade 'C' of the CAT w.e.f. 1.1.1992, thus bringing them at par with their counterparts in CSS/CSSS, without waiting for the formal amendment in the Rules. Thereafter vide Gazette Notification dated 25.10.1994, the recruitment rules had undergone amendment, bringing the Assistants/ Stenographers Grade 'C' of the CAT at par with their counterparts in the CSS/CSSS, as annexed by the applicants at Annexure 'D' (colly).
9. An OM was issued by the Department of Personnel & Training (DoP&T) granting a higher pay scale of Rs.3000-4500 to those PSs, who had rendered 8 years' regular service in the grade of Rs.2000-3500 and who were attached with the Secretary level officers. Accordingly, PSs, who were attached with Hon'ble Chairman/Vice-Chairmen in the CAT, made representations to the Government for granting the same pay scale to them as well on the principle of 'equal pay for equal work'. However, their representations were rejected without any proper justification. Being aggrieved, Shri S.K. Sareen, one of the PSs, who was at the relevant time attached with the Hon'ble Vice Chairman, filed OA No.777/1992, which was allowed by the Tribunal vide order dated 20.12.1999. Writ Petition (Civil) No.2500/2000 filed by the Union of India against the aforesaid decision was dismissed on 19.4.2002. Even the SLP No.1565/2003 filed by the Union of India was dismissed on 28.2.2003, affirming the decision of the Tribunal in S.K. Sareen (supra). In compliance of the aforesaid decision of the Tribunal, Government of India passed order dated 9.2.2005 (Annexure 'G'), revising the pay scale from Rs.2000- 3500 to Rs.3000-4500 (pre-revised) and one post of Principal Private Secretary (PPS) was upgraded to the pay scale of Rs.12000-16500 from Rs.10000-15200 as Senior Principal Private Secretary and 16 posts of PSs attached to the Hon'ble Vice Chairmen in CAT to Principal Private Secretary from the scale of pay of Rs.6500-10500 to Rs.10000-15200 (pre-revised), 58 OA No.1558/2015 With OA No.1561/2015 thereby again bringing the PSs of the CAT at par with their counterparts in CSSS.
10. Vide order dated 25.1.2006 (Annexure 'H'), the Government of India granted Non-Functional Selection Grade (NFSG) of Rs.8000-13500 to the PSs/SOs in the CSSS/CSS. Having denied the same benefit to the SOs/PSs in the CAT, some of the PSs working at Ernakulam Bench of the Tribunal filed OA No.475/2006, for grant of NFSG of Rs.8000-13500, claiming historical parity with the PSs of CSSS. The said OA was disposed of with a direction to the respondents to consider the claim of applicants, who are PSs in the Ernakulam Bench of the Tribunal, in the light of the averments made in the OA as well as the legal questions considered in the earlier judgments by the Tribunal and communicate a decision to the applicants. Non-compliance of the order led to filing of CP No.05/2007, which was, after hearing, disposed of on 6.11.2007, with a direction to the respondents to furnish the details of reference to the VI Central Pay Commission either by way of an affidavit by an officer at appropriate level or by filing the copies of the very reference, with copy to the counsel for the applicants, within a period of six weeks and the matter was converted into an execution application and directed to be listed on 2.1.2008. Thereafter, again in MA No.854/2008, a direction was issued on 28.2.2008 to the Secretary, DoP&T to personally handle the matter or at least monitor the matter and try to persuade the VI Central Pay Commission to consider the case of the applicants and other similarly situated. The Principal Registrar, CAT (respondent No.3 herein), was also directed to make available all the relevant materials to the Secretary and have due interaction with the DoP&T. Although in spite of aforesaid directions no reference was made to the Sixth Pay Commission, but, on 21.4.2008, learned senior standing counsel appearing for DoP&T & Ministry of Finance filed compliance affidavit, stating as follows:
"I am the Senior Central Government Standing Counsel appearing for the respondents in the above Original Application. This statement is filed on the basis of the instructions furnished by the respondents.
2. The above Miscellaneous Application had been filed by the petitioner/Applicant alleging disobedience of the directions contained in the Annexure P-1 Order of this Honourable Tribunal in Original Application No.475 of 2006 and also such other reliefs.59 OA No.1558/2015
With OA No.1561/2015
3. In this connection it is pertinent to note that the Respondents had fully complied with the directions of this Honourable Tribunal in the above Original Application contained in the Order dated 3.4.2007.
4. As per the directions of this Honourable Tribunal in the order dated 28.2.2008 the respondents have fully complied with the order. The Sixth Central Pay Commission has already submitted its report to the Government in which the Commission has examined and recommended the issue of parity of employees of Central Administrative Tribunal with employees of CSS & CSSS cadre in Paragraph 7.32.25 of its recommendations. A True copy of the relevant portion of the Recommendations of the 6th Pay Commission, is produced herewith and marked as ANNEXURE R-1.
5. It is pertinent to submit that pursuant to the Order of this Honourable Tribunal in this case was, the matter was forwarded for the implementation to the Department of Personnel and Training for taking up the matter will Pay Commission. Since the report has already been submitted by the 6th Central Pay Commission to the Government, the directions of this Honourable Tribunal had been complied with.
6. On a perusal of the above facts, it can be seen that the Respondent had fully complied with the directions of this Honourable Tribunal contained in the 3.4.2007 in Original Application NO.475 of 2006 in its letter and spirit and there is no wilful negligence or laches on the part of the Respondent in implementing the order of this Honourable Tribunal within the stipulated time. The Respondent tender unconditional apology for the delay if any, caused in implementing the order of this Honourable Tribunal. Hence the above Miscellaneous Application is liable to be dismissed and this Statement may also be accepted into file as full Compliance Report."
It is pertinent to mention here that the aforesaid compliance affidavit was filed on the basis of the letter dated 27.3.2008 of the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel & Training, addressed to the Registrar, CAT, Principal Bench, which reads as follows:
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With OA No.1561/2015 "I am directed to refer to your letter No.PB/4/21/06-R dated 20.3.2008 on the above subject and to say that 6th Central Pay Commission have already submitted its report/recommendations to the Government on 24.3.2008. As such, it may not be possible to make any further reference to Pay Commission.
2. However, the 6th Central Pay Commission have in para 3.1.9 and para 7.32.15 of its report (copy enclosed) relating to CAT have already recommended parity between Assistants/Section Officers/Stenographers of CSS/CSSS and similarly placed posts in field offices."
In consonance with the aforesaid authority to the effect that VI CPC has recommended the issue of parity of employees of CAT with CSSS/CSS in para 3.1.9 and para 7.32.15 of the Report, Hon'ble Tribunal at Ernakulam, on 26.06.2008 gave a direction to the respondents to work out and disburse pay scale and arrears to all the PSs of the CAT on refixation of their pay. Paras- 2 & 3 of the aforesaid order dated 26.6.2008, read as follows:
"2.Records would reveal that the Private Secretaries of Central Administrative Tribunal (CAT) had, under the Vth Pay Commission Recommendations been treated at par with their counterparts in the CSS/CSSS Cadre and accordingly the pay scale afforded to them has been made available to the Private Secretaries of CAT as well, with effect from 01.01.1996. Again, vide Annexure R-1 to the counter statement dated 21st April 2008, filed on 16th June 2008, the VI Pay Commission has also confirmed the parity between the two. This means that there is absolutely no question of different pay scales for the posts of Private Secretaries of CSS/CSSS on the one hand and the CAT on the other. As such, when for the Private Secretaries of CSS/CSSS the Government had introduced non-functional pay scale of Rs.8000- 13000/-, subject to fulfillment of certain conditions attached thereto, the same non- functional pay scale is expected to be extended to the Private Secretaries of CAT from the very same date and subject to similar conditions. Otherwise, it would amount to derailment by the Government from the finding of the Pay Commission, 61 OA No.1558/2015 With OA No.1561/2015 which is not permissible. Perhaps, the reservation of the respondents earlier, in extending the non-functional pay scale of Rs.8000-13500/- to the Private Secretaries of C.A.T. was on account of the apprehension that the VI Pay Commission may or may not confirm the parity between the two sets of Private Secretaries. Now that in clear terms, parity has been confirmed by the VI Pay Commission, there should be no impediment for the respondents to pass suitable orders extending the pay scale of Rs.8000- 13500/- from the date the Private Secretaries of the Central Secretariat Services/CSSS have been granted, subject no doubt to the fulfillment of the requisite conditions attached thereto.
3. It is a matter of record that such a situation in respect of Section Officers of the CBI has also been recently set right by the Principal Bench in OA No.377/06 by its order dated 1st May, 2007, which has been upheld by the Delhi High Court in Civil Writ Petition No.7475 of 2007 and CM No.14234 of 2007 vide order dated 10th October, 2007."
In spite of the aforesaid directions of the Tribunal, Respondents have not passed any order granting the Non-Functional Selection Grade of Rs.8000-13500 to the applicants.
11. It would be relevant here to extract paras 3.1.9 and 7.32.15 from the Report of VI CPC as follows:
"3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in all Secretariat Services (including CSS as well as non-
participating ministries/departments/
organizations) to Rs.7500-12000
corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS, the Section Officers in other Secretariat Offices, which have always had an established parity with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group B corresponding to the revised pay band PB- 2 of Rs.8700-34800 along with grade pay of Rs.5400 on completion of four years of service in the lower grade. This will ensure full parity between all Secretariat Offices.62 OA No.1558/2015
With OA No.1561/2015 It is clarified that the pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relativities which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs.4800 in pay band PB 2 is, otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis mutandis to post of Private Secretary/equivalent in these services as well.
"7.32.15 Assistants and Stenographers in Central Administrative Tribunal have demanded pay scales on par with Assistants and Stenographers in CSS/CSSS. The Commission has already recommended parity between similarly placed posts in Field Offices and Secretariat. This will address the instant demand. No separate recommendation is therefore necessary in this case."
12. Government of India vide Notification dated 29.8.2008 approved the recommendations of the 6th CPC and pay scale of SOs/PSs/equivalent in the CSS/CSSS, as specified in Section-II of Part 'B' of CCS (Revised Pay) Rules, 2008, was admissible, according to which, the posts of SO/PS whose pay scale has been revised to Rs.7500-12000 have been placed in PB-2 with Grade Pay of Rs.4800/- and Rs.8000-13500 on completion of four years in PB-3 with Grade Pay of Rs.5400/-. The condition precedent for grant of pay scale is that those organizations, which have had a historical parity with CSS/CSSS service and other organizations like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. were also covered. In implementation of the VI CPC Report, not only in AFHQ Service but also the departments like R&AW of the Cabinet Secretariat, UPSC, CBI, CVC, etc. SOs/PSs, have also been given the NFSG w.e.f. 1.1.1996 notionally and 3.10.2003 on actual basis.
13. Despite specific, clear and unambiguous recommendations of VI CPC, which have been accepted by the Government, a letter was addressed to the Principal Registrar, CAT dated 11.9.2008 wherein Ministry of Finance's Resolution dated 63 OA No.1558/2015 With OA No.1561/2015 29.8.2008 and Notification of even date were communicated. It has been stated that the pay of the employees of the CAT may be fixed in the replacement pay bands. However, necessary amendments will be carried out in the recruitment rules for various posts in CAT and the CAT (Staff) (Conditions of Service) Amendment Rules, 1988 separately. The pay of applicants was fixed provisionally on 12.9.2008 in the PB-2 with Grade Pay of Rs.4200/-. However, in partial modification of order dated 12.9.2008, the pay of applicants was re- fixed on 6.10.2008 and 7.10.2008 in PB-2 with Grade Pay of Rs.4800/- as per the recommendations of the VI CPC in para 3.1.9 and CCS (RP) Rules, 2008. The pay bills were prepared on the basis of these orders. However, the Pay and Accounts Officer took an objection, as a result of which, an order was passed on 23.10.2008, which decided that the issue of grant of Grade Pay to SOs/PSs of CAT at par with their counterparts in CSS/CSSS is under consideration with the Ministry of Finance. Of late, as transpired from the reply of the respondents, considering the CAT as a non-Secretariat Organization, the Ministry of Finance has taken a decision not to accord the Grade Pay to the applicants at par with CSS/CSSS and to accord the Grade Pay on the basis of the recommendations made in para 3.1.14 of the VI CPC Report.
14. However, by way of an ad interim order, respondents have been directed to grant the Grade Pay of Rs.4800/- to the applicants initially and on completion of four years service in the grade to Rs.5400/-, which has been complied with by re-fixing the pay of applicants but the arrears have not been paid. The VI CPC in its recommendation in para 7.32.15 of its Report insofar as Assistants and Stenographers who demanded parity with their counterparts has stated that as the Commission has already recommended parity between the similarly placed posts of Secretariat and Field Offices, no separate recommendation was found necessary. However, while making recommendation in para 3.1.9 insofar as CSS pay scales are concerned, which were applied to the PSs and equivalent in the services, including SOs, the Pay Bands prescribed to these employees have been mutatis mutandis applied to the counterparts with the condition precedent that they should have a historical parity. In AFHQSS, this has been applied and it also includes the departments/organizations like MEA, CVC, UPSC, and inclusive of the CAT, for which no separate recommendations were made. The extracted portion of para 3.1.9 establishes the aforesaid.
16. For proper adjudication of the case, the following issues may be framed:
64OA No.1558/2015
With OA No.1561/2015
i) Whether the CAT has jurisdiction in judicial review to interfere in the matter concerning parity of pay on wrong fixation of pay by the Government, pursuant to the recommendations by the expert body like Pay Commission?
ii) Whether the PSs/SOs in CAT have had historical parity with their counterparts in CSSS/CSS?
iii) Whether the decision taken by the Ministry of Finance to apply para 3.1.14 of the recommendations as accepted is legally justifiable?
xxx xxx xxx
48. The word 'historical' has been defined in Concise Oxford Dictionary, Tenth Edition (Revised) as belonging to or set in the past. Historical parity is the parity or equality maintained in the context of the present Original Application between the pay scales of PSs/SOs with that of their counterparts in CSS/CSSS in the wake of the recommendations by several Pay Commissions. A historical parity would be when it is established as an obligation to one who is claiming parity of pay scales with the class or category had been situated in the past at par in the equivalent pay scale with the counterparts with whom such parity is claimed. It is no more res integra as transpired from the Chart, which is not disputed by the respondents, that earlier in the cadre of Stenographers Grade 'C'/Assistants in the Fourth Central Pay Commission, the scale of pay was Rs.1400-2600, which had been upgraded in case of CSS/CSSS to Rs. 1640-2900 by issuing an O.M. but it has not been effected in CAT. The litigation resulted in an order passed by the DOP&T in pursuance of the direction of the Tribunal in OA No. 2865/1991 and CCP No. 262/1993 wherein it has been decided to grant pay scale to the counterparts CAT employees of Rs. 1640-2900 even without amending the recruitment rules. However, subsequently the rules were amended. In S.K. Sareen vs. Union of India & Ors. (OA No. 777/1992 decided on 20.12.1999), the pay scale of Rs.3000-4500 from 01.01.1986 was sought on the principle of 'equal pay for equal work' at par with their counterparts in CSSS. When order was affirmed by the Delhi High Court on 19.04.2002 and SLP against which was also turned down, in CP 405/2003, an order was passed on 09.02.2005 upgrading the 16 posts of Private Secretaries to Principal Private Secretaries and one post of PPS to Senior Principal Private Secretary in the relevant pay scales at par with 65 OA No.1558/2015 With OA No.1561/2015 CSSS. This clearly shows that the parity in the pay scale has been maintained in the CAT relating to two categories upto the stage of Fourth CPC.
49. The only anomaly which had occurred on account of grant of pay scale of Rs. 1640-2900 has been set right on a judicial dicta which holds the field and was complied with.
50. In Fifth CPC the PSs/SOs were recommended the pay scale of Rs. 6500-10500 and also the counterparts in CSS/CSSS. However, the NFSG scale of Rs. 8000-13500 to the merged grade of A & B of PSs of CSSS has been allowed notionally w.e.f. 01.01.1996 and actually w.e.f. 03.10.2003. The applicants have raised this issue before the Ernakulam Bench where the CP converted into Misc. Application, an affidavit filed by the Government clearly indicates that the Commission has examined and recommended the issue of parity of employees of CAT with their counterparts in CSS/CSSS cadre in para 7.32.15 of the Report of the 6th Pay Commission. It is further reiterated on acceptance by the DOP&T vide letter dated 27.03.2008 where the parity, recommended by the 6th CPC in para 3.1.9 and 7.32.15 of the Report, with counterparts in CSS/CSSS has been accepted.
51. In the above view of the matter regarding the parity of pay scale in 5th CPC in the wake of an admitted fact of the historical parity between the CSS/CSSS with counterparts in CAT, a final decision is awaited for grant of NFSG grade of Rs.8000-13500 notionally and actually to the employees of the Tribunal. However, as this is not the issue before us, except reiterating in law their demand, the issue of historical parity between the PSs/SOs of CAT and on the other hand SOs/PSs of CSS/CSSS is no more res integra and once accepted by the government and recommended by 6th CPC, the aforesaid recommendations contained in paragraphs 3.1.9 and 7.32.15 having been accepted by the Government, the stand now taken by the respondents that what is applicable to the applicants in the present OA is para 3.1.14 of the recommendations of the 6th CPC is absolutely misconceived. It is pertinent to note that this para applies to non-secretariat offices and to those for whom there is no historical parity with CSS/CSSS and in favour of whom a criteria of recommendations has not been laid down in the 6th CPC recommendations. On a juxtaposition, 6th CPC while making its recommendations in para 7.32.15 as to cadre structure of higher pay scale in CAT reiterated that Assistants and Stenographers in CAT have demanded pay scales at par with their counterparts in CSS/CSSS and as the Commission has already recommended parity between the 66 OA No.1558/2015 With OA No.1561/2015 similarly placed posts in field offices and Secretariat, no separate recommendation has been made. The only logical and rationale inference to be drawn is that whatever has been recommended in para 3.1.9 is to be applied mutatis mutandis to the employees of the CAT on the condition precedent being fulfilled, which is establishment of historical parity with CSS/CSSS. The recommendations contained in para 3.1.14 of 6th CPC Report where the field organizations and non-secretariat organizations have been recommended the pay scale are not at all applicable to the employees of the CAT, as a specific recommendation made in paragraph 7.32.15 Commission having recommended parity between the similarly placed posts in field offices and secretariat the instant demand has been fulfilled. It is trite that when there is a specific recommendation made as transpired from para 3.1.9 as to parity with pay scale of CSS/CSSS structure the asterisk (*) clearly shows that even to the non-secretariat offices and organizations being carved out as an exception to the recommendations contained in para 3.1.14 is that those organizations which are not exhaustive but includes departments and organization which have had a historical parity the pay scale would be at par with CSS/CSSS. It is trite that under the principle of interpretation that in case of interpretation of a service rule, if two views are possible then the rule has to be interpreted with the practice followed in the department for long time as held in Shailendra Dania & Ors. vs. S.P. Dubey & Ors., 2007 (2) SCC (L&S) 202, a marginal note with a provision is an integral part of it and being an exception in the instant case as an asterisk (*) to para 3.1.9, the same has applicability to all field offices and non-secretariat organizations, all departments where there has been historical parity with the pay scale of their counterparts in CSS/CSSS. We cannot read para 3.1.14 in isolation of para 3.1.9 and 7.32.15 where both the recommendations having been accepted by the Government, only applying para 3.1.14 to the exclusion of 3.1.9 would amount to approbating and reprobating simultaneously, as a conscious and well taken decision when transformed into an affidavit of the Government before the Ernakulam Bench, an admission to acceptance of parity and acceptance also of established parity as a historical background leaves no doubt in our mind that there has been a historical parity of SOs/PSs in CAT with their counterparts in CSS/CSSS. They cannot now, as a contradictory stand, deny the same as it would not only be unfair but also is a misuse of their discretionary power which is to be exercised by an administrative authority judiciously after balancing all the relevant factors as ruled by the Apex Court in Union of India vs. Kuldip Singh, 2004 (2) SCC 590. A discretion vested in the administrative authority is 67 OA No.1558/2015 With OA No.1561/2015 neither unfettered nor absolute. It is to be exercised in consonance with the rights of a government employee and Constitution of India. A consideration worth in law is one, which thinks over on active application of mind all the relevant consideration and factors as ruled by the Apex Court in Bhikubhai Patel (supra). As a model employer just to deprive the applicants their rights and legitimate dues without any justifiable reasons and on misreading of their CSSS Revised Pay Rules, 2008, irrelevant considerations have been grounded to deprive the applicants the requisite pay scales on established historical parity with those of their counterparts in CSS/CSSS. Learned counsel for the respondents relied upon the decision of High Court in Mohinder Pal Singh (supra) and in M.V.R. Rao (supra) by a Larger Bench of this Tribunal. In this regard it is pertinent to note that this issue of parity of CAT employees with CSS/CSSS has been dealt with by this Tribunal in S.K. Sareen's case (supra) which, on affirmation from the High Court, and also rejection of SLP, on implementation by the respondents not only attained finality but also is an admission to the effect by the respondents that the SOs/PSs of CAT are maintaining historical parity with those of their counterparts in CSS/CSSS. It is worthwhile to note that there is even a finding recorded that the duties and functional requirements of the CAT employees are more onerous than their counterparts in CSS/CSSS, which has not been overturned by any dicta. A judicial dicta when holds the field and the arena in which it operates, it is impermissible in law to the administrative authorities to infiltrate it as ruled by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC
327. The Apex Court has also ruled in Dhampur Sugar Mill v. State of Uttranchal, 2007 (11) SCALE 374 that when a public authority acts with oblique motive, bad faith or takes into account extraneous or irrelevant consideration, the exercise has to be held as not in accordance with law.
52. In the above view of the matter the contention that the Government has not accepted the claim of the applicants as to the parity with CSS/CSSS is founded on a ground and justification, which has been misconceived by them and wrongly applied. Such a consideration cannot be a consideration worth in law.
53. In the matter of pay scale equation though the prerogative lies with the Government but any action taken especially when such a recommendation covers the claim of the applicants and accepted by the Government, no reasonable justification has come forth, which would deprive the applicants the grant of identical pay scale. Had there been a case where recommendations having been accepted by the Government in its discretion, the applicants would 68 OA No.1558/2015 With OA No.1561/2015 have no indefeasible right to claim the pay scale. One of the points raised is financial constraint in accord of benefits, which as a trite law, has not been found to be a valid defence by the Government, as a right of an employee cannot be defeated on this technical issue. In the matter of parity of pay scale, financial constraint cannot be a defence as ruled by the Apex Court in Union of India vs. Atonomic Engery Workers Staff Union, 2005 (1) ATJ (HC) (Bombay) 92.
54. As regards opening of flood gate litigation and administrative chaos, it is held to be no ground to take away the valuable right of a person under the Constitution by the Apex Court in Coal India Ltd vs. Saroj Kumar Mishra, 2008 (2) SCC (L&S) 321. In G.S. Uppal (supra), financial constraints have not been found to be good ground on established implementation of doctrine of equal pay for equal work.
55. A discriminatory and contradictory stand is antithesis to the fairness in law. As the issue of NFSG of RS.8000-13500 to the OSs in case of CBI, a non-secretariat office at par with CSS/CSSS, decision in S.C. Karmakar (supra) was affirmed by the High Court of Delhi. Even the decision of the Tribunal in the case of R&AW Department has been implemented by the Government by grant of pay scale/NFSG to the concerned SOs, by order dated 19.01.2009 and also the SOs/PSs in AFHQ were allowed the pay scale on 25.09.2008. This clearly shows that the 6th CPC recommendations in para 3.1.9 have been adhered to not only in the case of SOs/PSs of the CSS/CSSS but also in the case of SO/PSs in other Organisations, who have had historical parity. As such, exclusion of the CAT employees and not meeting out the same treatment in respect of Grade Pay without any intelligible differentia having reasonable nexus with the object sought to be achieved, is an unreasonable classification and an invidious discrimination, which cannot be countenanced in the wake of Article 14 of the Constitution of India.
56. In the light of the discussions made above, issue no. (i) framed by us is answered to the extent that as in the matter of grant of pay scale there has been an unreasonableness and accepted recommendations having not been followed and applied to the applicants at par with their counterparts in CSS/CSSS, an exception has been carved out as per the trite law to interfere with the decision of the Government in judicial review by us.
As far as the issue No. (ii) is concerned, we have already concluded that the SOs/PSs of CAT have always had historical parity with their counterparts in CSS/CSSS.
69OA No.1558/2015
With OA No.1561/2015 Accordingly the issue no. (iii) is answered on the basis of the above observations that such an application is misconceived, misplaced and contrary to law.
57. Resultantly, for the foregoing reasons, we have no hesitation to hold that the decision of the Government to deny Grade Pay of Rs.4800/- in PB-2 to the PSs and SOs of the CAT initially and Grade Pay of Rs.5400/- in PB-3 on completion of four years service in the grade is arbitrary, illegal and violative of Articles 14 and 16 of the Constitution of India, since they are having established historical parity with their counterparts in CSS/CSSS and, therefore, applicants are entitled to these Pay Bands with Grade Pay. The interim order is made absolute. The difference in arrears of pay shall be disbursed to the applicants within a period of one month from the date of receipt of a copy of this order. The OA is accordingly allowed to the aforesaid extent. No costs."
14. Again, when the applicants were not granted the pay scale as revised for CSSS (Steno) and Assistants, which has been revised to Rs.6500-10500, they filed OA No.1165/2010 - titled Sunita Dutt & Ors. v. Union of India & Ors. This Tribunal, however, vide order dated 09.04.2010, disposed of the OA directing the respondents to treat the OA as a representation on behalf of the applicants therein and decide the reliefs prayed for in the said OA in the background of historical parity of CAT staff with their counter- parts in CSS/CSSS, by passing a reasoned and speaking order, within a period of two months from the date of receipt of a copy of that order. In 70 OA No.1558/2015 With OA No.1561/2015 compliance thereof, the respondents had implemented the order of the Tribunal vide order dated 06.07.2010, and as a result thereof revised the pay scale of applicants therein from Rs.5500- 9000 to Rs.7450-11500 in PB-2 + Grade Pay Rs.4600. No appeal was either filed by the respondents against the above order of the Tribunal and hence it has attained finality. The respondents cannot now turn around and say at this stage that the same is not applicable to the applicants. The respondents can not approbate and reprobate simultaneously.
15. From the above, it is crystal clear that from the very inception of the Tribunal in 1985, there has been parity between the employees of the CAT with that of their counterparts in the CSS/CSSS and the only disparity, which cropped up was grant of pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade 'C' in the Central Secretariat. Assistants and Stenographers Grade 'C' in CAT represented to the Government for revision of their pay scale to Rs.1640-2900 from Rs.1400-2600 to bring them at par with the 71 OA No.1558/2015 With OA No.1561/2015 corresponding categories in CSS/CSSS. However, their representations were rejected, which led to filing of OA Nos. 2865/1991, 529/1992 as well as OA-178/1992 before the Principal Bench and Cuttack Bench of the Tribunal. The aforesaid OAs were allowed by the Tribunal directing the respondents to consider grant of revised pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade 'C' of the CAT. Resultantly, Government of India by letter No.G.26012/92-A dated 29.10.1993 granted the pay scale of Rs.1640-2900 to the Assistants/Stenographers Grade 'C' of the CAT w.e.f. 01.01.1992, thus bringing them at par with their counterparts in CSS/CSSS, without waiting for the formal amendment in the Rules. Thereafter vide Gazette Notification dated 25.10.1994, the recruitment rules had also undergone amendment, bringing the Assistants/Stenographers Grade 'C' of the CAT at par with their counterparts in the CSS/CSSS.
16. Having regard to the discussions made hereinabove, we are of the considered view that the employees of the Tribunal have always had historical parity in the matter of pay and 72 OA No.1558/2015 With OA No.1561/2015 allowances with their counter-parts in CSS/CSSS and were always extended the same pay scales as extended to their counter-parts in the CSS/CSSS. Once the respondents have implemented the decision of this Tribunal dated 6th July, 2010 passed in the case of Smt. Sunita Dutt (supra) and granted the benefits to the applicants with the concurrence of the Ministry of Finance, Department of Expenditure, vide its I.D. No.33(3)/2010-E.III(B) dated 21.06.2010 and chose not to file any appeal against it, therefore, they are now estopped from withdrawing the benefits of the same from the applicants on the on the ground that the benefits of UO note dated 14.12.2009 are not applicable to the employees of the CAT is nothing but an attempt to unsettle the settled historical parity. Moreover, when a field is occupied by judicial pronouncements, internal notes in the form of UO note cannot infiltrate into it. We also notice that when some of the employees of the Tribunal working as LDCs filed OA 701/2013 seeking grant of pay scale of Rs.4500-125-7000 w.e.f. 01.01.1996, at par with LDCs of District Courts, the respondents have filed their counter- 73 OA No.1558/2015
With OA No.1561/2015 affidavit and in reply to para 5.4 have stated as under:
"The contention of the applicant that the parity of scales to the post of LDC with LDC's of District Court has been denied on the grounds that the nature of duties of LDCs of CAT are similar to LDC's of CSS and not with LDC's of District Courts, is totally false, misleading and vehemently denied. The claim of the applicant for grant of pay scales of the District Court of Delhi has been denied as there is an established parity of scales of the CAT employees with their counterparts in CSS/CSSS/CSCS whereas there is no such parity with employees of District Court."
Emphasis supplied.
17. Based on the above stand of the respondents, the Tribunal dismissed the OA vide order dated 05.08.2015. The applicants challenged the aforesaid orders before the Hon'ble Delhi High Court by way of W.P. (C) No.3717/2016, which too was dismissed vide order and judgment dated 03.05.2016. Para-7 of the judgment reads thus:
"7. We note that the decision of this Court in Mirza Zahid Beg & Ors. (supra) conferred no right upon the petitioners to seek a higher pay. The petitioners‟ pay has been fixed in the context of historical parity of pay scales with their counterparts of CSS/CSS/CSCS. The petitioners‟ pay has been linked with Central Government employees and not with those working in the judiciary under similar designation, in the District & Sessions Court, Delhi. Comparison between these two services will be improper and misplaced. Furthermore, the petitioners belong to an All India Service with identical pan-India pay scales. The petitioners have not been able to show any case of hostile discrimination with their counterparts in the 74 OA No.1558/2015 With OA No.1561/2015 government with whom their pay scales have historical equivalence and uniformity."
18. In view of this categorical stand of the respondents and in view of the decision of the Hon'ble High Court of Delhi in W.P.(C) No.3717/2016 (supra), there is no doubt in our mind that the employees of the CAT have always had the historical parity between the posts of Assistant/Section Officer/Court Officer in Tribunal with that of Assistant/Section Officer in CSS and Court Master/Stenographer Grade C/Private Secretary in the Tribunal with that of Stenographer Grade C/PA/Private Secretary in CSSS and, as such, they are entitled to the same pay scales as applicable to their counter-parts in CSS/CSSS. Moreover, the successive Pay Commissions, right from IV Pay Commission since the inception of the Tribunal have maintained the historical parity between the employees of the Tribunal with that of their counter-parts of CSS/CSSS. Whenever attempts were made to disturb this parity in the past, it was found unreasonable and violative of Articles 14 & 16 of the Constitution of India and was judicially negated, in various judicial pronouncements, as discussed hereinabove and 75 OA No.1558/2015 With OA No.1561/2015 lastly in the case of Kapil Kumar Setia (supra) by the Hon'ble High Court of Delhi in W.P. (C) No.3717/2016, as reproduced hereinabove which has already attained finality and implemented after affirmation by the higher Courts upto the level of Supreme Court.
19. We, therefore, hold that the respondents cannot disturb the historical parity between the employees of the Tribunal with that of their counterparts in CSS/CSSS under the garb of UO note dated 14.12.2009.
19.1 As regards effect of the decision of this Tribunal in T. Srinivasa (supra), we hold that since the applicants are not parties to it and the said matter has no direct bearing on the issue involved in these two matters, we do not find it appropriate to record any finding thereon.
20. In the conspectus of the facts and circumstances of the case, we allow both these OAs holding that the applicants in both the OAs are entitled for the same pay and fixation thereof in the same manner as had been granted and done by the respondents in the cases of their counterparts Assistant/Section Officer in CSS and Stenographer 76 OA No.1558/2015 With OA No.1561/2015 Grade C/PA/Private Secretary in CSSS keeping in view the historical parity maintained by the various judicial Fora in S.R. Dheer (supra) followed by the Tribunal in Sunita Dutt (supra), in compliance of which the respondents have passed order dated 06.07.2010 and lastly by the Hon'ble High Court of Delhi in W.P. (C) No.3717/2016 vide order dated 03.05.2016. The applicants shall also be entitled to all consequential benefits.
21. We also notice that in MA No.3410/2021 filed by the applicants that some of the applicants have retired from service during the pendency of the OA and recoveries have been ordered to be effected from the retiral dues of applicant no.2, Mr. Harish Arora and applicant no.16, Mr. Deep Chand, the same is directed to be refunded to them, after re-fixing their pay and pension. The respondents are further directed to revise their pay/pension and calculate the admissible arrears and pay the same to the aforesaid applicants, within a period of not later than eight weeks from the date of receipt of a certified copy of this order. The interim order granted by this Tribunal vide order dated 27.04.2015 is hereby made absolute. 77 OA No.1558/2015
With OA No.1561/2015
22. In the facts and circumstances of the case, there shall be no order as to costs.
23. A copy of this order be also kept in OA No.1561/2015.
(R.N.Singh) (A.K. Bishnoi)
Member (J) Member (A)
'San.'