Delhi High Court
C.S.O. Senior Investigators' ... vs Union Of India & Ors. on 6 July, 1999
Equivalent citations: 1999VAD(DELHI)325, 80(1999)DLT748, 1999(51)DRJ385
Author: Madan B. Lokur
Bench: Madan B. Lokur
ORDER Madan B. Lokur, J.
1. Rule D.B. both in Civil Writ Petition No. 144 of 1999 and Civil Writ Petition No. 2044 of 1999.
2. With the consent of Learned Counsel for the parties, and since the pay scale of a large number of employees is involved, these petitions under Article 226 of the Constitution were taken up for final disposal and heard on 3rd, 4th, 11th, 17th, 24th, 25th and 26th May, 1999 when judgment was reserved. Written submissions have also been filed by the parties.
3. Petitioner No. 1 in Civil Writ Petition No. 144 of 1999 is an association of about 70 Senior Investigators working in the Central Statistical Organisation (for short CSO). The CSO is an attached office of the Department of Statistics in the Ministry of Planning and Programme Implementation of the Government of India. Petitioner No. 2 is an individual (and perhaps a representative) Senior Investigator. For the sake of convenience, both of them, and the others that they purport to represent, are hereafter referred to as the Petitioners.
4. Respondent Nos. 1 to 4 are the Government of India and authorities subordinate to or functioning in the Government. They are referred to, hereinafter, as the Government.
5. Respondent No. 5 is the Secretary of the All India Association of Assistant Superintendents (1) of the Field Operations Division (for short FOD) of the National Sample Survey Organisation (for short NSSO). The NSSO is a subordinate officer of the Department of Statistics in the Ministry of Planning and Programme Implementation. Respondents No. 6 is an Assistant Superintendent in the FOD of the NSSO. These two Respondents, along with others whom they purport to represent are, for the sake of convenience, referred to as the Respondents.
6. The Petitioners in Civil Writ Petition No. 144 of 1999 have challenged the correctness of the order dated 6th November, 1998 passed by the Central Administrative Tribunal, Principal Bench, New Delhi (for short the Tribunal) in O.A. No. 1374 of 1998. The impugned order was passed by the Tribunal on an Application filed by the Respondents under Section 19 of the Administrative Tribunals Act, 1985. In Civil Writ Petition No. 2044 of 1999 the Government is the Petitioner and it has challenged the same order dated 6th November, 1998. It is for this reason that both the Writ Petitions have been heard together and are being disposed of by this common judgment.
7. The question that arises for our consideration is the interpretation of paragraphs 81.15, 81.16 and more particularly, 81.17 of the Report of the Vth Central Pay Commission (hereinafter referred to as the 5th CPC). These paragraphs read as follows:-
"81.15. In regard to Superintendents in the Field Operations Division of NSSO, after having scrutinised their duties and responsibilities, we recommend upgradation of 358 sanctioned posts of Superintendents from Rs. 1640-2900 (pre-revised) to the pay scale of Rs. 2000-3500 (pre-revised). We are also of the view that at this grade direct recruitment of candidates possessing post-graduation degree in the subjects mentioned in the R&P rules should be commenced. We endorse the 4th CPCs recommendations that an effective stage of promotion should be introduced before the entry of Superintendents into the JTS of Indian Statistical Service. The entrants in Rs. 2000-3500 (pre-revised) would move through the replacement scale of Rs. 2375-3750 and the entry scale of ISS Group A in a time bound manner.
81.16. There are currently 1713 sanctioned posts of Assistant Superintendent (Rs. 1600-2660) and 1453 sanctioned posts of Investigators (Rs. 1400-2300) in the Field Operation Division of NSSO. Many representations have been made to us that these two categories of posts should be merged and given the scale of Rs. 1640-2900 (pre-revised). The Department of Statistics, however, is not in favour of the merger. Having examined the qualifications and duties and responsibilities of Investigator and Assistant Superintendents, we recommend the upgradation of Investigator and Assistant Superintendent and accordingly the replacement scales of Rs. 1600-2660 and Rs. 1640-2900 should be given to the Investigators and Assistant Superintendents respectively. We are also of the opinion that there should be direct graduate recruitment in the pay scale of Rs. 1600-2660 (pre-revised). The entrants in this scale would move through the scales of Rs. 1640-2900 and Rs. 2000-3500 in a time bound manner.
81.17. A large number of posts of Junior and Senior Statistical Investigators in the scales of Rs. 1400-2300 and 1640-2900 are spread over different Ministries and Offices of the Government of India. We observe that some of these posts are isolated and the chances of promotions for the incumbent in such cases are very bleak. We recommend that all such posts with statistical functions be constituted into a subordinate statistical Service and all recruitment to the feeder posts in Indian Statistical Service be centralized and placed under the ISS Cadre Controlling Authority. All posts of Junior Statistical Investigator in the scale of Rs. 1400-2300 be upgraded and given the replacement scale of Rs. 1600-2660. All Junior Statistical Investigators/Statistical Assistants in the scale of 1400-2300 will henceforth be called Statistical Investigators Grade-II. All posts of Senior Statistical Investigators/Assistants at present in the pay scale of Rs. 1640-2900 may be given the replacement scale of Rs. 2000-3500 and be called Statistical Investigators Grade-I. At a level of Statistical Investigator Grade-II, recruitment may be taken up with graduation in statistics as the minimum qualification. The entrants in this scale would move through the replacement scale of Rs. 1640-2900 and Rs. 2000-3500 in a time bound manner. Post Graduation may be made the minimum qualification for entry to 50% of the post of Statistical Investigator Grade-I. The entrants to this level will move through the replacement scale of Rs. 2375-3750 and the entry scale of ISS Group A in a time bound manner."
8. The Government has accepted the Report of the 5th CPC, insofar as the controversy in the present writ petitions is concerned. While doing so, the Government has issued, in exercise of powers conferred by Article 309 and clause (5) of Article 148 of the Constitution, the Central Civil Services (Revised Pay) Rules, 1997 (for short the Rules) which were deemed to have come into force from 1st January, 1996. The Rules were notified in the Gazette of India on 30th September, 1997. Part C of the First Schedule to the Rules (with which we are concerned ) deals with the revised scales of pay for certain posts in Ministries and Departments of the Government of India and Union Territories and the same reads as follows:
"The revised scales of pay mentioned in Column 4 of this part of the Notification for the posts mentioned in column 2 have been approved by the Government. However, it may be noted that in certain cases of the scales of pay mentioned in Column 4, the recommendations of the Pay Commission are subject to fulfilllment of specific conditions. These conditions relate inter alia to changes in recruitment rules, restructuring of cadres, re-distribution of posts into higher grades etc. Therefore, in those cases where conditions such as changes in recruitment rules etc. which are brought out by the Pay Commission as the rationale for the grant of these upgraded scales, it will be necessary for the Ministries to decide upon such issues and agree to the changes suggested by the Pay Commission before applying these scales to these posts w.e.f. 1.1.1996. In certain other cases where there are conditions prescribed by the Pay Commission as pre-requisite for grant of these scales to certain posts such as cadre restructuring, redistribution of posts etc. it will be necessary for the Ministries/Departments concerned to not only accept these preconditions but also to implement them before the scales are applied to those posts. It would, therefore, be seen that it is implicit in the recommendations of the Pay Commission that such scales necessarily have to take prospective effect and the concerned posts will be by the normal replacement scales until then."
9. Item XXIII of Part C concerns the Ministry of Planning and Programme Implementation and the revised scales of pay, as approved by the Government are as follows:
"XXIII MINISTRY OF PLANNING & PROGRAMME IMPLEMENTATION NATIONAL SAMPLE SURVEY ORGANISATION Sl. POSTS PRESENT SCALE REVISED SCALE PARA No. (Rs.) (Rs.) of Report (1) (2) (3) (4) (5)
1. Superintendents, 1640-60-2300-75-2900 6500-200-10500 81.15 FOD Division
2. Investigators, 1400-40-1800-50-2300 5000-150-8000 81.16 FOD
3. Asstt. Suptd., 1600-50-2300-60-2660 5500-175-9000 81.16 FOD
4. Jr. Statisitical 1400-40-1800-50-2300 5000-150-8000 81.17 Investigator/ Statistical Asstt.
5. Sr. Statistical 1640-60-2300-75-2900 6500-200-10500 81.17 Investigator/ Asstt.
6. Office Supdt. 1600-50-2300-60-2660 5500-175-9000 81.18 Gr. II
7. Binder, SDRD, 775-12-871-14-1025 2750-70-3800- 81.20 NSSO 75-4400
10. Notwithstanding the Notification dated 30th September, 1997, the Department of Statistics issued an Office Memorandum (O.M.) dated 14th October, 1997 addressed to all Ministries/Departments of the Government of India. By the O.M. dated 14th October, 1997, the Respondents were given the Pay Scale of Rs. 5000-8000 (which was the normal replacement scale with reference to their existing pay scale) instead of Rs. 5000-9000 pending a final decision on the creation of a Subordinate Statistical Service. In other words, the upgradation of pay scales recommended by the 5th CPC and accepted by the Government was not given effect to insofar as the Respondents were concerned.
11. It appears that the O.M. dated 14th October, 1997 created some complications because the Department of Statistics issued an O.M. dated 23rd October, 1997 wherein it referred to their telephonic discussions with the Implementation Cell of the Department of Expenditure of the Ministry of Finance. It appears that the Implementation Cell has sought to know the circumstances under which the O.M. has been issued. The Department of Statistics explained the circumstances in which the said O.M. dated 14th October, 1997 was issued and sought the advice of the Department of Expenditure on the Recommendations of the 5th CPC having regard to the problems/anomalies mentioned in the O.M. dated 23rd October, 1997.
12. While a response to the o.M. dated 23rd October, 1997 was pending, the Respondents, along with one G.S. Sharma, Assistant Superintendent in the FOD of the NSSO filed O.A. No. 647 of 1998 in the Tribunal under Section 19 of the Central Administrative Tribunal Act, 1985. The Applicants therein challenged the O.M. dated 14th October, 1997 and prayed for grant of the pay scale of Rs. 5500-9000 as recommended by the 5th CPC and accepted by the Government.
13. On 14th May, 1998 the Implementation Cell of the Department of Expenditure replied to the letter dated 23rd October, 1997 of the Department of Statistics. In paragraph 2 of the letter dated 4th May, 1998, the Implementation Cell clarified that the 5th CPC has not specifically prescribed the constitution of a Subordinate Statistical Service "as a condition precedent for the grant of higher replacement scales of pay for the posts in position....." The letter further goes on to State that "the only pre-conditions for the placement of the posts of Investigator, Assistant Superintendent and Superintendent in higher replacement scales of pay relate to direct recruitment of graduates to the posts of Investigator and of postgraduates in the specified subjects to the posts of Superintendents."
14. Paragraphs 2, 4 and 9 of the letter dated 4th May, 1998 read as follows:
"2. The apprehensions expressed by the Department in paras 6 and 7 of the O.M. about the anomalies likely to arise as a result of acceptance of the higher replacement scale recommended by the 5th CPC for the Superintendents in the Field Operations Division in the NSSO and the extension of similar higher scales of pay to other recongnised statistical discipline post holder in other Ministries and departments only after a suitable decision is taken on the constitution of a Subordinate Statistical Service have been examined. It appears that these apprehensions are primarily attributable to the Department having linked the issue of grant of the higher scales of pay to the statistical function posts with the constitution of the Subordinate Statistical Service. No doubt, the recommendations of the 5th CPC envisage inter alia the constitution of such a Service in which the statistical function posts spread over various Ministries and Departments, including the NSSO (which is also one of the participating organisations providing feeder posts for the ISS), are to be included. It may, however, be clarified that this has not been specifically prescribed as a condition precedent for the grant of higher replacement scales of pay for the post in question though this will, no doubt, necessitate appropriate changes in the recruitment rules relating to these posts. Insofar as the posts in the FOD and NSSO are concerned, the only pre-conditions for the placement of the posts of Investigator, Assistant Superintendent and Superintendent in higher replacement scales of pay relate to direct recruitment of graduates to the posts of Investigator and of postgraduates in the specified subjects to the posts of Superintendent. It will, therefore, be necessary for the administrative Ministry to first accept the recommended changes in the mode of recruitment and educational qualifications in case these are different at present and to amend the relevant recruitment rules thereafter with the approval of the competent authorities.
4. The process of constitution of the Subordinate Statistical Service as well as the centralisation of recruitment to the feeder posts in the Department of Statistics as recommended is likely to be time-consuming. It would, therefore, suffice if the changes recommended in the mode of recruitment to the posts in the Field Operations Division and other statistical function posts and the consequential amendments necessary to the relevant recruitment rules are formally accepted, with the approval of the competent authority, by the NSSO/Department of Statistics and the other participating Ministries/Departments. Once this is done, the higher replacement scales for these posts can be extended retrospectively w.e.f January 1, 1996. Prospective introduction of the Higher replacement scales recommended for various posts by the 5th CPC will arise only in those cases where restructuring of cadres or redistribution of posts is involved.
9. The Department of Statistics may, therefore, kindly review the cases in the light of the foregoing observations and take appropriate action to authorise the higher scales of pay recommended for the posts of the Field Operations Division of NSSO and other statistical function posts with effect from January 1, 1996, subject to the Department(s) agreeing to amend the recruitment rules as recommended by the 5th CPC."
15. Consequent to the letter dated 4th May, 1998, the Department of Statistics issued an O.M. dated 30th June, 1998 accepting the advice of the Implementation Cell and deciding to grant the upgraded scales of Pay to the Respondents with effect from January, 1996. The relevant portions of paragraphs 4 and 5 of the O.M. dated 30th June, 1998 read as follows:-
"4. It will be seen from the above that the Implementation Cell of Ministry of Finance (Department of Expenditure) have agreed for the grant of upgraded scales of pay w.e.f 1.1.1996 to the following Group `B' and `C' statistical function posts in different Ministries/Departments subject to the condition that the administrative Ministries/Departments of these posts agree in principle to the recommended changes (as recommended by the 5th CPC) in the recruitment rules to the extent of direct recruitment and the educational qualifications , etc. and amend them, with the approval of the competent authorities thereafter:-
Post Pre-revised Normal Upgraded Para of
Scale of Pay Replacement replacement Fifth
(in Rs.) Scale of pay scale of pay CPC's
(in Rs.) (in Rs.) report
1. Supdt. FOD 1640-2900 5500-9000 6500-10500 81.15
2. A.S. FOD 1600-2660 5000-8000 5500-9000 81.16
3. Investr.FOD 1400-2300 4500-7000 5000-8000 81.16
4. JI/Invstr. 1400-2300 4500-7000 5000-8000 81.17
/Stat. Asstt.
etc.
5. S.I./Sr. 1640-2900 5500-9000 6500-10500 81.17
Stat.
Asstt. Etc.
5. The matter has been reconsidered by the Department in the light of the observations/advice of the Implementation Cell of the Department of Expenditure (referred to above) and it has been decided to grant the upgraded scales of Pay in respect of the categories of posts as stated in para 4 above w.e.f 1.1.1996. The Ministries/Departments are accordingly requested to take necessary action to upgrade the scales of pay of the various categories of statistical post holders (as mentioned above w.e.f 1.1.96 (along with arrears of pay) subject to the condition referred to in para 4 of this O.M.".
16. When O.A. No. 647 of 1998 was listed before the Tribunal on 21st July, 1998, the learned Government Counsel sought dismissal of the Application in view of the fact that the relief prayed for by the Respondents had been granted by the Government issuing O.M. dated 30th June, 1998. However, the learned counsel for the Respondents (Applicants before the Tribunal) asserted that although the Respondents are at par with the Petitioners, the pay of the Petitioners has been further upgraded to Rs. 6500-10500 by the O.M. dated 30th June, 1998 and hence the Respondents are still being discriminated against. The Tribunal noted the submission of the learned counsel for the parties and held that since the grievance of the Applicants regarding grant of the pay scales of Rs. 5500-9000 had been satisfied, nothing further survived in the Application which was accordingly disposed of with liberty to the Respondents to challenge the O.M. dated 30th June, 1998 if so advised.
17. Thereafter, the Respondents filed O.A. No. 1374 of 1998 in the Tribunal praying, inter alia, for quashing of the O.M. dated 30th June, 1998 insofar as the Petitioners were given the scale of Rs. 6500-10500 and for a direction to the Government to constitute the Subordinate Statistical Service and thereafter implement the recommendations of the 5th CPC with regard to the Petitioners. In the alternative, the Respondents (Applicants in O.A. No. 1374 of 1998) prayed for the grant of the pay scale of Rs. 6500-10500 to them with effect from 1st January, 1996.
18. The Petitioners were not originally joined as parties in O.A. No. 1374 of 1998. They, however, intervened in the matter and were also heard by the Tribunal. After hearing all the parties, the Tribunal passed an order dated 11th November, 1998 allowing O.A. No. 1374 of 1998 and quashing O.M. dated 30th June, 1998 so far as it related "to giving higher replacement scale of Rs. 6500-10500 to Senior Investigators/Senior Statistical Investigators and others".
19. It is this order dated 6th November, 1998 passed by the Tribunal which is impugned before us.
20. According to the Respondents, they were in the pre-revised scale of Rs. 1600-2660 (for which the replacement scale is Rs. 5000-8000) since 1st January, 1986. The 5th CPC recommended that their pay scale be upgraded to Rs. 1640-2900 (for which the replacement scale is Rs. 5500-9000) from 1st January, 1986. The Respondents also say that the Petitioners were in the pre-revised scale of Rs. 1640-2900 (for which the replacement scale is Rs. 5500-9000) from 1st January, 1986; but, they further say that the 5th CPC made no recommendation for the upgradation of the pay scale of the Petitioners and so the Petitioners are not entitled to have their pay upgraded to Rs. 2000-3500 as has been done by the Government. (The upgraded pay scale of Rs. 2000-3500 has a replacement scale of Rs. 6500-10500).
21. The Respondents submit that what has been recommended by the 5th CPC in paragraph 81.17 is the creation of a Subordinate Statistical Service. When this Service is created, all posts of Senior Statistical Investigators/Assistants at present in the pay scale of Rs. 1640-2900 (such as the Petitioners) may be given the pay scale of Rs. 2000-3500 and be called Statistical Investigators Grade-I. Consequently, it was submitted that the Petitioners are not entitled to the Pay scale of Rs. 2000-3500 until the creation of the Subordinate Statistical Service and the O.M. dated 30th June, 1998 Negages this recommendation of the 5th CPC, and to that extent the said O.M. deserves to be set aside.
22. To appropriate the contention of the respondents, it is necessary to have the relevant hierarchical structure of the Department of Statics which is as follows:
Assistant Director Indian Statistical Service Grade-IV Rs. 8000-13500 (replacement scale as per the recommendations of the 5th CPC) Senior Investigator- CSO Superintendent - FOD NSSO
------------------------ -------------------------
Rs. 1640-2900 (pre-revised) Rs. 1640-29009pre-revised)
w.e.f. 1.1.86 w.e.f. 1.1.86
Rs. 5500-9000 (replacement scale) Rs. 5500-9000 (upgraded)
Rs. 6500-10500 (replacement Rs. 2000-35000 (upgraded)
Scale)
Feeder Cadre for ISS Gr.-IV Feeder cadre for ISS Gr-Iv
Asstt. Superintendent - FOD NSSO
--------------------------------
Rs. 1600-2660 (pre-revised)
W.e.f. 1.1.86
Rs. 5000-8000 (replacement scale)
Rs. 1640-2900 (upgraded)
Rs. 5500-9000 (replacement scale)
Feeder cadre for Superintendents,.
Junior Investigator -CSO Investigator -FOD NSSO
------------------------ ----------------------
Rs. 1400-2300 (pre-revised) Rs. 1400-2300 (pre-revised)
w.e.f. 1.1.86 w.e.f. 1.1.86
Rs. 4500-7000 (replacement Rs. 4500-7000 (replacement
Scale) scale)
Rs. 1600-2660 (upgraded) Rs. 1600-2660 (upgraded)
Rs. 5000-8000 (replacement Rs. 5000-8000 (replacement
scale) scale)
Feeder cadre for Senior feeder Cadre for Assistant
Investigator. Superintendent.
23. There is no dispute about the fact that at least from that time of the acceptance of the recommendations of the IVth Central Pay Commission, Senior Investigators (that is the Petitioners) and Superintendents in the FOD of the NSSO are drawing the same pay scale. In fact, according to the Government, these two categories of officers have been drawing the same pay scale ever since the time the recommendations of the 1st Central Pay Commission were accepted. This fact has not been controverted by the Respondents but we take it as established that Senior Investigators in the CSO and Superintendents in the FOD NSSO have been drawing the same scale of the Pay at least since 1st January, 1986 if not earlier.
24. There is also no dispute about the fact the Senior Investigators in the CSO and Superintendents in the FOD of the NSSO constitute the feeder posts for promotion to the post of Assistant Director Grade-IV in the Indian Statistical Service. This is borne out by Rule 8(1)(a)(ii) of the Indian Statistical Services Rules, 1961, which reads as follows:
"40. percent of the vacancies in this Grade shall filled by Selection from among officers serving in Offices under the Government in Statistical posts recognised for this purpose by Controlling Authority who shall prepare a list of such posts in consultation with the Commission. The Controlling Authority may in consultation with the Commission add to modify the list from time to time. The selection will be made from amongst those who have completed at least 4 years of service on a regular basis in these posts on the basis of the merit with due regard to seniority by the Controlling Authority on the advise of the Commission".
25. The "list of such posts" referred to above has been mentioned in a letter dated 2nd September, 1996 issued by the Ministry of Planning and Programme Implementation. The letter dated 2nd September, 1996 clearly shows that the post of Senior Investigator, CSO and Superintendent, FOD and NSSO are feeder posts for promotion to Grade-IV of the Indian Statistical Service. This letter refers to similar and earlier letters giving the "list of such posts". In the absence of anything to the contrary, it seems clear that both the posts referred to above are, and have been, feeder posts for promotion to Grade-IV of the Indian Statistical Service, at least for quite a few years.
26. The Respondents have not controverted this position and have merely said in their counter affidavit in reply to paragraph 16 of the Grounds that "pursuant to the recommendations of the 5th CPC even the feeder list made by the Respondents for promotion to the post of Indian Statistical Service Grade-IV would also undergo change. It is incumbent upon the Respondents to change the feeder list accordingly".
27. The Government in its counter affidavit has accepted and acknowledged the fact that the post of Senior Investigator, CSO and Superintendent, FOD NSSO are feeder posts for promotion to Grade-IV of the Indian Statistical Service.
28. Consequently, we take it as established and not disputed by the parties that the posts of Senior Investigator, CSO and Superintendent, FOD NSSO are feeder posts for Grade-IV of the Indian Statistical Service.
29. In view of this, if the contention of the Respondents is accepted, it must mean that the 5th CPC has equated Senior Investigators (the Petitioners) with Assistant Superintendents (the Respondents) with the result that either both are entitled to the upgraded scale of Rs. 2000-3500 (replacement scale of Rs. 6500-10500) or both are entitled to the scale of Rs. 1640-2900 (replacement scale of Rs. 5500-9000), the latter alternative being valid only till the creation of the Subordinate Statistical Service.
30. As regards the first alternative, it has been the contention of the Respondents that they should be upwardly equated with the Senior Investigators. According to them, the nature of work being done by both of them is similar; in fact, the work done by the Respondents is alleged to be more important, strenuous and qualitatively superior. The Respondents submit that prior to 1984, direct recruitment to the post of Assistant Superintendent required postgraduate qualification in Mathematics/Statistics/Ecomonics, which is the same qualification required for direct recruitment of a Senior Investigator. The Respondents state that there has been as anomaly with regard to their status and pay scale and that they have been agitating for the removal of this anomaly. They submit that the 5th CPC has eventually agreed with them and removed the anomaly by equating them with the Petitioners.
31. We find it difficult to accept this contention of the Respondents.
32. The result of accepting the submission of the Respondents would mean that the Respondents would be drawing the same scale of pay as Superintendents, who are admittedly their superiors inasmuch as the post of Assistant Superintendent is the feeder post for Superintendents. This could surely not have been intended by the 5th CPC.
33. Moreover, the feeder cadre to Grade-IV of the Indian Statistical Service would then consist of Senior Investigator (CSO), Superintendent (FOD NSSO) and Assistant Superintendent (FOD NSSO), Again, this could hardly have been the intention of the 5th CPC.
34. Finally, if the submission of the Respondents is accepted then it would mean a double upgradation for them - first of all from Rs. 1600-2660 (replacement scale Rs. 5000-8000) to Rs. 1640-2900 (replacement scale of Rs. 5500-9000) and then to Rs. 2000-3500 (replacement scale of Rs. 6500-10500). If the 5th CPC had intended this situation, it would no doubt have explicitly said so.
35. As regards the similarity or equivalence of work done by Assistant Superintendents and Senior Investigators is concerned, the Government has quite categorically stated on affidavit (paragraphs 3.15 and 3.21) that the duties and responsibilities of these posts are totally different and the prescribed educational qualifications for the post of Assistant Superintendent are lower than for the post of Senior Investigator. We really have no material to differ from this assessment.
36. Consequently, we hold that (at this stage) the Respondents are not entitled to the pay scale of Rs. 2000-3500 (replacement scale of Rs. 6500-10500).
37. The second alternative canvassed by the Respondents is that Senior Investigators are only entitled to the pay scale of Rs. 1640-2900 (replacement scale of Rs. 5500-9000), at least till the Subordinate Statistical Service is formed. It is submitted by the Respondents that creation of the Subordinate Statistical Service is a pre-condition for the grant of a higher pay scale of Rs. 2000-3500 (replacement scale of Rs. 6500-10500) for Senior Investigators.
38. Frankly, we find nothing in paragraph 81.17 of the Report of the 5th CPC to suggest that the creation of a Subordinate Statistical Service is a pre-condition for upgrading the pay scale of the Petitioners. The recommendation is simply to constitute a Subordinate Statistical Service. The reason for recommending the constitution of such a service is that the posts of Junior and Senior Statistical Investigators (carrying the prerevised scale of Rs. 1400-2300 and Rs. 1640-2900 respectively) are spread over different Ministries and Offices of the Government of India, and some of these posts are isolated and the chances of promotion of the incumbents of these posts are bleak. There are no strings attached to this recommendation of the 5th CPC. Alternatively, one might well ask what the situation would be if this recommendation had been rejected by the Government. Would it then meant that the lot of Senior Investigators would have remained unchanged ever since the time the recommendations of the IVth Central Pay Commission were accepted? The answer to this is categorically in the negative.
39. Accepting the view canvassed by the Respondents would also result in a strange situation where the feeder posts for promotion to Grade-IV of the Indian Statistical Service would consist of Superintendent, FOD NSSO having a pay scale of Rs. 2000-3500 (replacement scale of Rs. 6400-10500) and Senior Investigator, CSO having a pay scale of Rs. 1640-2900 (replacement scale of Rs. 5500-9000). Such a situation is, ex facie, untenable and unacceptable.
40. Moreover, acceptance of this view would mean effectively "downgrading" the post of Senior Investigator in the sence that Senior Investigators who have hitherto been getting the same pay scale as Superintendents, would not be getting a comparatively lower pay scale, namely, the pay scale applicable to Assistant Superintendents, atleast for the time being. We are afraid that a plain reading of paragraph 81.17 of the Report of the 5th CPC does not indicate any such intention of view.
41. There are several additional reasons for rejecting both the above alternative submissions of the Respondents.
42. For one, we find that though the Department of Statistics had some serious doubts about the interpretation of the recommendations of the 5th CPC. the Implementation Cell of the Department of Expenditure clarified the position in its letter dated 4th May, 1998. The contents of this letter are unambiguous and they clearly show that the Government had no doubts in its mind that the 5th CPC had not laid down any pre-condition for upgrading the pay scale of Senior Investigators. It is true that earlier, the Department of Statistics had expressed the view that creating the Subordinate Statistical Service was a pre-condition to grant of a higher pay scale to the Petitioner, but the letter dated 4th May, 1998 set all doubts at rest. In the normal course, the opinion of the Implementation Cell should be accepted as correct especially since it is dealing with day to day issues pertaining to the recommendations of the 5th CPC. Of course, if the interpretation is perverse, the Courts will not hesitate to strike down that interpretation. Nothing has been shown to us to indicate that the interpretation given in the letter dated 4th May, 1998 is perverse.
43. It has been brought to our notice by the Government that a demand for merger of the posts of Assistant Superintendent and Superintendent in the NSSO had been made before the IVth Central Pay Commission but no such recommendation was made by the IVth Central Pay Commission "in view of the functional necessity at this level" (paragraphs 10.360 to 10.362 of the Report of the IVth Central Pay Commission).
44. Representations were also made before the Vth Central Pay Commission for the merger of the posts of Assistant Superintendents and Investigators in the FOD of the NSSO but the Department of Statistics was against the merger and as such no recommendation to this effect was made by the 5th CPC (paragraph 81.16 of the Report of the 5th CPC).
45. These facts have been mentioned only to show that the consistent view of the Government and the Central Pay Commission has been to maintain a three tier structure in the FOD of the NSSO. Demands and representations to convert it into a two-tier structure have been rejected in the past. The Respondents seek to undo this position and we find no justifiable reason to obliquely accept their request when expert bodies have directly rejected it.
46. With regard to the contention of the learned counsel for the Respondents that the 5th CPC has made no recommendation for upgrading the pay scale of the Petitioners, it has been brought to our notice by the learned counsel for the Government that even assuming this to be so, the Vth Central Pay Commission had made the following recommendation:
"Paragraph 168.3: In the event of any Central Government post being left out without allotment of revised pay scales in the Report, it should be given the commensurate revised scale of pay as applicable for posts with similar entry qualifications. Duties and responsibilities, duly retaining the horizontal and vertical relativities in the organisation."
47. It was submitted that in terms of this recommendation, Senior Investigators, CSO are entitled to the same pay scale as Superintendents, FOD NSSO since the entry qualifications for both posts are similar, the duties and responsibilities are also similar, keeping in mind the "horizontal and vertical relativities".
48. This recommendation has been accepted by the Government.
49. Of course, this submission of the learned counsel for the Government was made in the alternative and without prejudice to the submissions made by him earlier.
50. Learned counsel for the Petitioners advanced a submission to the effect that accepting the view propounded by the Respondents would lead to utter chaos in certain situations. The submission is that there may be certain Senior Investigators in the CSO who are senior to Superintendents in the FOD of the NSSO. If the submission of the Respondents is accepted, such Senior Investigators would get a lower pay than the Superintendents and yet be eligible for promotion to Grade-IV of the Indian Statistical Service. Theoretically this may be possible, but in the absence of any facts and figures having been supplied to us, we cannot comment on this submission one way or another.
51. It has ( finally) been contended before us that the O.M. dated 30th June, 1998 violates the terms of the Notification dated 30th September, 1997 and since the Notification is statutory, the O.M. must give way to it.
52. Frankly, we do not find any discrepancy between the contents of the Notification dated 30th September, 1997 and the O.M. dated 30th June, 1998. Among other things, Part C of Schedule 1 of the Notification (on which reliance is placed merely mentions that there are certain categories of posts in respect of which the recommendations are subject to the fulfillment of specific conditions. These specific conditions are, inter alia, changes in recruitment rules, restructuring of cadres etc. These specific conditions are said to provide the rationale for the recommendations.
53. There are other categories of posts in respect of which cretin preconditions have been laid down by the Central Pay Commission. These preconditions have to be met before implementing the pay scales applicable to these posts. Such pre-conditions include, inter alia, cadre restructuring, redistribution of posts, etc.
54. It will be seen from this that "restructuring cadre" or "cadre restructuring" may amount to a "rationale" in one case and may amount to a "precondition" in another.
55. It is sought to be contended by the Respondents that in the present case, the creation of a Subordinate Statistical Service is a pre-condition to the grant of higher pay scales to Senior Investigators. We are of the view that the plain language of paragraph 81.17 of the report of the 5th CPC does not support such a contention. Nowhere is it suggested (let alone clearly stated) in paragraph 81.17 of the Report that the grant of higher pay scale to Senior Investigators is dependent upon the fulfillment of the pre-condition of creating a Subordinate Statistical Serivce. Consequently, there is no conflict between the contents of the Notification dated 30th September, 1997 and the O.M. dated 30th June, 1998.
56. It may be worthwhile to recall that the Notification dated 30th September, 1997 prescribes a pay scale for Senior Investigators as Rs. 6500-200-10500. Accepting the contentions of the Respondents would mean holding that the relevant portion of the said Notification is contrary to the recommendations of the Vth Central Pay Commission.
57. This has neither been pleaded by the Respondents nor has it been their case at any point of time. The contents of the Notification dated 30th September, 1997 go aginst the case of the Respondents rather than support it.
58. The Petitioners and the Government have also placed reliance on Rule 14 of the Central Civil Service (Revised Pay) Rules, 1997 which reads as follows:
"Interpretation - If any question arises relating to the interpretaion of any of the provisions of these rules, it shall be referred to the Central Government for decision."
59. The contention of the Petitioners and the Government is that assuming there is some doubt about the meaning and interpretation of Part C of Schedule 1 to these Rules, the interpretaion given by the Central Government should prevail and, it is contended, the Central Government has interpreted the Rules to mean that the grant of higher pay to senior Investigators is not subject to fulfillment of any pre-condition. While it is not necessary for us to rely on Rule 14 of the said Rules, we do take note of this contention for whatever it is worth.
60. The Petitioners have made a few tertiary submissions before us. It has been contended that the Respondents have shifted from the stand taken by them in O.A. No. 647 of 1998. It is submitted that a slightly different stand was taken by the Respondents in o.A. No. 1374 of 1998 and now in reply to the writ petition, yet another stand has been taken. While there does appear to be some substance in this grievance voiced by the Petitioners, we need not go into it in detail in view of the fact that we do not agree with the Respondents in their "final" stand taken before us.
61. It is also contended by the Petitioners that the Respondents had no locus standi to challenge the O.M. dated 30th June, 1998. It is submitted that the Respondents should not be concerned with the pay scale given to the Petitioners; rather, they should be concerned with the pay scale awarded to them. We are inclined to reject the contention of lack of locus especially in view of the alternative prayer made by the Respondents in O.A. No. 1374 of 1998. consequently, we hold that the Respondents did have the necessary locus to challenge the O.M. dated 30th June, 1998.
62. The last of the submissions of the Petitioners is that in view of the provisions of Order 2 Rule 2 of the Civil Procedure Code (or in any case, on principles analogous thereto) the Respondents are deemed to have given up any relief not claimed by them in O.A. No. 647 of 1998. The short reply offered by the Respondents to this submission is that O.M. dated 30th June 1998 came into existence subsequent to the filing of O.A. No. 647 of 1998 and moreover, the Respondents had sought leave of the Tribunal to challenge the said O.M. which leave was granted. We find merit in this submission and hold that Order 2 Rule 2 of the Civil Procedure Code (or principles analogous thereto) are not attracted to the facts of these cases.
63. The learned counsel for the Petititoners has relied on some judgments of contend that this Court can examine the recommendations of the Vth Central Pay Commission. On the other hand, learned counsel for the Respondents has cited some decisions to contend that we cannot do so. We need not go into this aspect at all since we are only examining whether the recommendations of the Vth Central Pay Commission have been correctly appreciated or not. Our jurisdiction, on this limited aspect, has not been doubted by any of the parties.
64. Consequently, in view of our findings above, we allow both the writ petitions and set aside the order of the Tribunal dated 6th November, 1998 passed in O.A. No. 1374 of 1998.
65. On the facts and in the circumstances of the case, there will be no order as to costs.