Central Administrative Tribunal - Delhi
Miss Tejinder Kaur vs Union Of India on 9 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA 319/2009 MA 14/2014 New Delhi this the 9th day of January, 2014 Honble Mr. V.Ajay Kumar, Member (J) Honble Mr. P.K.Basu, Member (A) Miss Tejinder Kaur D/o Shri Sudershan Singh, R/o M-16, Green Park (Main) New Delhi-110016 Applicant (Appeared in person) Versus 1. Union of India Through Secretary, Deptt. of Women & Child Development Ministry of Human Resource Development (and Vice-Chairperson NIPCCD) Shastri Bhawan, New Delhi 2. Dr. Tuk Tuk Kumar, Ex-Project Director (DANIDA Project), NIPCCD and presently Advisor West Bengal Industrial Development Corporation C-373, Defence Colony, New Delhi-110024 3. National Institute of Public Cooperation & Child Development Through its Director 5, Siri Institutional Area, New Delhi Respondents (Through Shri H.D. Sharma, Advocate) ORDER
Mr. P.K. Basu, Member (A) The applicant was appointed as Research Assistant in the respondent organization and joined on 26.09.1990. As per applicants case, initially she was reporting directly to the Deputy Secretary of the concerned Ministry because at that time this job was being handled in a small cell in the National Institute of Public Cooperation and Child Development (NIPCCD). Thereafter, she used to report directly to the Joint Director/ Director and never to a Deputy Director. It is her case that the reason for this was that she was always given the responsibility attached with the post of Deputy Director though she was only a Research Assistant. When the post of Deputy Director was advertised on 7.05.1994, she also applied but was not called for interview. Aggrieved, the applicant filed a case in the Honble High Court and the Honble Court directed the respondents to file an affidavit stating whether the petitioner is eligible for being considered for appointment directly. The respondents informed the High Court, through their counsel on 26.08.1994, that the petitioner is now eligible to apply and being considered for direct recruitment. Finally, the Honble High Court directed on 26.08.1994 that petitioners application for direct recruitment should be entertained and her candidature be considered with other candidates. The petitioner submitted her application on 12.09.1994 for the post of Deputy Director but since no action was taken by the respondents, CCP 316/1995 was filed on 16.11.1995. Thereupon, an assurance was given by the respondents before the Honble High Court on 4.12.1995 that the petitioner shall be called for interview and the process is not yet completed. It is alleged by the applicant that not only did they not comply with the order of the Honble High Court, they manipulated the mode of recruitment of 2 of the 4 direct recruitment posts to transfer on deputation, in favour of certain interested candidates. It is vehemently argued that the applicant was not considered for any of the four posts advertised on 7.05.1994, instead she was interviewed for a non-existent post for which she was not even eligible. The Contempt Petition was, however, dropped. The petitioner filed an SLP against the order of the Honble High Court of Delhi and the Honble Supreme Court in its order dated 5.09.2012 observed as follows:
We are, prima facie, satisfied that the non petitioners have deliberately misled the High Court and this Court and manipulated non consideration of the candidature of the petitioner for the post of Deputy Director for which she was eligible. In CCP No.316/1995, the Honble High Court observed as follows:
The present contempt petition has been filed by the petitioner for violation of the Order passed by the Division Bench of this Court on August 26, 1994. The operative portion of the Order reads as under:
Counsel for the respondents states that the petitioner is now eligible to apply and being considered for direct recruitment. In view of the fact that the petitioner is now eligible for being appointed, the petitioners application for direct recruitment should be entertained and her candidature be considered with other candidates. This satisfies prayer (a) in the writ petition. The learned counsel for petitioner states that the petitioner was considered eligible for being appointed and her application for direct recruitment for the post of Deputy Director was to be assessed in terms of the order as stated above. The petitioner as a consequence was called for interview on February 15, 1996 for the post of Deputy Director (Nutrition). The said post, it is stated, does not exist and the respondents have merely called the petitioner for interview for a non-existent post so that the order made on August 26, 1994 will prima facie seem to be satisfied. The fact, however, remains that the result for the post for which the petitioner was interviewed as far back as on February 15, 1996 has not yet been declared for the reasons best known to the respondents. There is, therefore, no compliance of the Order passed by the Division Bench on August 26, 1994.
2. This application has been filed by the applicant with the prayer initially to issue direction commanding the respondents to consider the applicant for appointment/ promotion to the post of Deputy Director and after finding her eligible, to appoint her to that post on a regular basis. However, in the amended application dated 8.10.2001, the prayer is to regularize the applicant on the post of Deputy Director and grant her consequential benefits of such regularization including the designation and pay scale of the post of Deputy Director with effect from 26.09.1990. In both the applications, another prayer made is for issuance of direction to the respondents to pay the applicant a sum of Rs.21000/- as remuneration which she is entitled to under the DANIDA package for having performed the duties and responsibilities of a Deputy Director.
3. In 2013, in an open selection, the applicant was appointed as Joint Director in the same organization. Her claim pertains to the period till she became Joint Director.
4. Heard both the parties.
5. The case of the applicant is that through out her career in the respondents organization, she had been given the responsibilities and duties of a Deputy Director and not Research Assistant. She bases her claim on the fact that according to the ACRs placed before us for the period 1992 to 2007-08, the Reporting Officer in her case has been the Deputy Secretary or Joint Director and the Reviewing Authority has been the Joint Director or Director, which clearly indicates that she was not ever placed under a Deputy Director. We find in the ACRs of 2007-08 that the Reporting Authority has mentioned as follows:-
Being a Research Assistant she was able to independently carry out tasks and produce quality output. Again for the year 2005-06, the following is recorded:-
Being a Research Assistant, the officer has brought out documents and independently organized several workshops/training programmes and written articles which, goes to the credit of the officer. For the year 2004-05, the following is recorded:-
In view of the fact that Ms. Kaur has completed all assignments single handed and effectively, her work needs to be recognized. She is intelligent, hard working and committed. I would like to upgrade overall grading to outstanding. Needless to say she has consistently earned high praise for her work throughout her career and rated generally as outstanding.
6. The applicant also pointed out that when she was selected to the post of Joint Director, both the recruitment rules for the post of Joint Director and the advertisement clearly prescribed as essential qualification, 15 years experience in training/teaching at degree level and research or advocacy of which 5 years should be at a senior supervisory level, which goes to show that the respondents themselves considered her as possessing requisite experience of 5 years at senior supervisory level, which could be only if the respondents accept that she was discharging the supervisory level work of a Deputy Director. In case of experience only as a Research Assistant, there was a no question of accepting her experience as that of a supervisory level. She also took us through the job description of Specialist (also called Deputy Director) and Research Assistant to indicate that the job she was carrying out was clearly that of a Specialist. The applicant pointed out that in her letter to the Secretary, Department of Women & Child Development and the Vice Chairman, NIPCCD, she represented against a Deputy Director reporting on her ACRs, who was not the actual Reporting Officer. It is pointed out that in the noting on the file, the following has been observed:
Keeping in view the above, it is felt that some very experienced person should guide the project. JD, P, who is highly experienced person within the Deptt. of WCD may monitor and supervise the period. It has been claimed that this would indicate that the applicant was indeed doing the work of higher responsibility as this work was ultimately assigned to her. The applicant, therefore, claims that the principle of equal pay for equal work should therefore apply in her case and she should be given pay, allowances and other consequential benefits equal to that of a Deputy Director.
7. In support of her case, the applicant has cited the following judgments on the subject of equal pay for equal work:-
(i) B.K. Basnotra Versus the Honble the Chief Justice, Delhi High Court and another, C.W.P No.1799/1987 decided by the Honble High Court on 30.05.1987. The question before the Honble High Court was that while the petitioner was a Senior Translator and he discharged the work of Court Master, whether he should get the pay of Court Master on the principle of equal pay for equal work. The respondents took the plea that the petitioner appeared in the examination for the post of Court Master but he could not qualify, as such there was no question of the petitioner drawing the pay of Court Master. However, the Honble Court held as follows:-
It is contended that the Petitioner did not make any representation for getting such salary and if he had made a representation during that time, he could have been shifted out and posted in his substantive post of Senior Translator. I am afraid this is not the correct way to look at the matter. An employee does not have to make a representation for equal pay for equal work. It is for the establishment to see where its employees are posted and whether they have been rightly posted there or not. Obviously, since the Petitioner worked for about 16 years without any objection from the establishment, it was with the tacit acceptance of the establishment and, of course, with its full knowledge that he worked as a Court Master. Whether he made a representation for equal pay for equal work is irrelevant.
It is then submitted that very often when a Court Master is on leave, some other employee is asked to officiate in his position for the duration of the leave. This may be so and it would be so in fortuitous circumstances. But this sort of a situation cannot continue undisturbed for 16 years as has happened in the present case.
Under the circumstances, I am of the view that the Petitioner is entitled to get salary and allowances as a Court Master for the period from 22nd February, 1971 to 30th May, 1987.
(ii) In Dr. Sakhaullah Versus Visvesveraya Regional College of Engineering, Nagpur and 3 others, 1999 LAB I.C 991, the Honble Court held as follows:-
In any case, this material sufficiently indicates that as a matter of fact that petitioner was asked by the respondent No.1 Institution to do the teaching job and also by the University to work as examiner and paper setter and, therefore, it is not possible to accept the contention of the respondent No.4 that the petitioner may have secured some letters from the Heads of the Departments where he was working to show that he has in fact worked as a lecturer. As already pointed out, the petitioner having retired from service after filing of this petition and consequently not having worked after attaining the age of 58 years, there is no question of considering his earlier request as there was no stay to the order impugned in this petition. The only relief that can possibly be granted to the petitioner on accepting his contention that he has on the directions of respondent No.1 as well as University the respondent No.4, practically worked as a lecturer and has also discharged ancillary functions of paper setting and examiner which as pointed out as per the present record after the retirement of the Professor Shri W.M. Deshpande w.e.f. 1-10-1992, the petitioners request for granting him equivalent pay scale of a lecturer deserves consideration as the same is wholly justified.
(iii) Dr. Sudhakar Malviya and others Versus Banaras Hindu University and others, Special Leave to Appeal (Civil No.16412/1998) decided on 28.07.1998 by the Allahabad High Court. Here the petitioners were recruited as Research Assistant but in actual practice, after certain lapse of time, they had been working as Lecturer. The Honble High Court held as follows:-
After hearing the learned counsel for the parties we are of the considered view that though the qualification for Lecturers, procedure for appointment is different to some extent as discussed in the counter affidavit and Statute but it is not denied and almost admitted that petitioners have been performing the work of teaching which falls within the ambit of Section 2 of the Act. After all what is imparting of instruction in a common parlance. It is nothing but to teach. No doubt the Research Assistants were collecting the material but University imposed upon them by circumstances the duty of teaching.
xxxx xxxx xxxx The University allowed by their act and conduct and asked the petitioners to teach and it would be irrational, unreasonable and would amount to violation of Article 14, 21 and 23 of Constitution of India if they are not granted equal pay scale of regular Lecturers.
xxxx xxxx xxxx xxxx Shri V.K. Goyal, learned counsel for the petitioners has relied upon AIR 1983 SC 81 Gopal Krishna Sharma and others Vs. Yamuna Shankar Sharma in which it is held-
Constitution of India, Article 14, 39 (d) Equal pay for equal work University creating posts of Research Associates on ad hoc basis for duration of projects of Council of Agricultural Research with same educational qualifications and selection process and job-chart meant for Research Assistants. This done to avoid equation claims that may arise if claim of certain Research Assistant for pay scale given to Lecturers Assistant Professors was upheld Work done by Assistant and Associates almost identical claim of Assistants for pay scale of Rs.700,00/1600 accepted by Supreme Court. Though Associates are not entitled to claim pay scale as hey were never on time scale, considering circumstances in which posts of Associates were created payment of paltry consolidated amount of Rs.1,100/- to them, not justified Direction given to work out consolidated salary of Associates on basis of minimum of pay scales allowed to Assistants and allowing monetary benefits thereon in form of allowances allowed to regular employee.
8. The petitioner, therefore, claims that while initially she had filed the case for appointment as Deputy Director and later for regularization on the said post, since in the first Writ Petition itself she had raised the question of equal pay for equal work and, therefore, she prayed that given the fact that through out she had been carrying out the work of a Deputy Director, her Supervisory Officer being either minimum the Deputy Secretary or the Joint Director, she is entitled to the pay attached to the post of Deputy Director. Relying on the judgments of the Honble Supreme Court and the Honble High Courts, the applicant states that she is entitled to the pay scale of the post of Deputy Director from 26.09.1990.
9. The respondents case is that the petitioner has made two different prayers in the original and the amended petitions and now she is claiming pay of the post of Deputy Director on the principle of equal pay for equal work, which cannot be considered. It is stated that the petitioner was called for interview for the post of Deputy Director but the Committee formed to recommend the candidates did not find the petitioner suitable and thus, she was not appointed to the said post. However, when she applied for the Joint Directors post, she was found suitable and appointed in 2013. It is vehemently stated by the learned counsel for the respondents that at no point of time did the applicant carry out the duties and functions of a Deputy Director; the claim of the applicant is absurd, imaginary and based on circumstantial evidence, therefore, her request for the pay scale of Deputy Director for the period she worked as Research Assistant cannot be acceded to.
10. Respondents also cited the following judgments of the Honble Supreme Court:-
Steel Authority of India Limited and ors. Vs. Dibyendu Bhattacharya, (2011) 11 SCC 122. The Honble Supreme Court held as follows:
19. In State of Haryana Vs. Tilak Raj, (2003) 6 SCC 123, this Court held as under:
11To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-`-vis an alleged discrimination.
2. Equal pay for equal work is a concept which requires for its applicability complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. The problem about equal pay cannot always be translated into a mathematical formula. Union of India and anr. Vs. Ashok Kumar Aggarwal, Civil Appeal No.9454/2013 decided on 22.11.2013. On the issue whether notings on the file can be relied upon, the Honble Court held as follows:
16. The instant case is required to be considered in light of the aforesaid settled legal proposition, statutory provisions, circulars etc. The Tribunal inter alia had placed reliance on notings of the file. The issue as to whether the notings on the file can be relied upon is no more res integra. In Shanti Sports Club v. Union of India, (2009) 15 SCC 705, this Court considered the provisions of Articles 77 (2), 77 (3) and 166 (2) of the Constitution and held that unless an order is expressed in the name of the President or the Governor and is authenticated in the manner prescribed by the rules, the same cannot be treated as an order on behalf of the Government. The Court further held:
43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77 (1) and (2) or Articles 166 (1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77 (2) or Article 166 (2). A noting or even a decision recorded in the file can always be reviewed/ reversed/ overruled and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. Similarly, while dealing with the issue, the Court in Sethi Auto Service Station v. DDA, AIR 2009 SC 904 held:
14. It is trite to state that notings in a departmental file do not have the sanction of law to be an effective order. A noting by an officer is an expression of his viewpoint on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notings are not meant for outside exposure. Nothings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned.
17. In Jasbir Singh Chhabra v. State of Punjab, (2010) 4 SCC 192, this Court held:
35.However, the final decision is required to be taken by the designated authority keeping in view the larger public interest. The notings recorded in the files cannot be made basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fides or is influenced by extraneous considerations The argument of the respondents is that the applicant has relied upon notings of the file, which is not permissible as per the law laid down by the Honble Apex Court.
State of Madhya Pradesh and others Vs. Ramesh Chandra Bajpai, (2009) 13 SCC 635. The Honble Court held as follows:
Service Law Pay Equal pay for equal work Held, this can be invoked only when the employees are similarly situated Further held, similarity in designation, or nature, of quantum of work, is not determinative of equality in the matter of pay scales Court has to consider factors like the source and mode of recruitment/ appointment, qualifications, nature of work, value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. Equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holders of two posts In the instant case, the Single Judge and also the Division erred in directing that pay of respondent Physical Training Instructor be fixed in scale prescribed for post of teacher Though the Division Bench had observed that the rules governing and regulating the service of the respondent make a distinction between Physical Training Instructor and teacher in the matter of status and pay scale, but proceeded to sustain the direction given by the Single Judge mainly on the premise that the orders passed in the cases of other Physical Training Instructors had not been assailed Approach of the Single Judge as well as the Division Bench was thus, erroneous. P.S. Ramamohan Rao Vs. A.P. Agricultural University and another, (1997) 8 SCC 350. The dispute in the cited case was whether a Physical Director could be considered as a teacher given the job descriptions and whether he should get the benefit of retirement at the age of 60 years. The Court held as follows:
19. We are unable to agree. It may be that the Physical Director gives his guidance or teaching to the students only in the evenings after the regular classes are over. It may also be that the University has not prescribed in writing any theoretical and practical classes for the students so far as physical education is concerned. But as pointed by us earlier, among various duties of the Physical Director, expressly or otherwise, are included the duty to teach the skills of various games as well as their rules and practices. The said duties bring him clearly within the main part of the definition as a teacher. We, therefore, do not accept the contention raised in the additional counter-affidavit of the University. It was also pointed out by the respondents that the applicant is not the only Research Assistant who is doing independent work but there are several others who have doing such type of work and have not been given the pay scale of Deputy Director.
11. The learned counsel for the respondents concluded that since the applicant was appointed as Research Assistant, there was no question of her being given the scale of Deputy Director as she never discharged the duties of the said post. In fact, between the posts of Research Assistant and Deputy Director, there is the post of Assistant Director and she had not been appointed even as Assistant Director. Secondly, since the job description of Deputy Director is altogether different from what the applicant did, the principle of equal pay for equal work cannot be applied at all as per the judgments of the Honble Supreme Court on the subject.
12. We have carefully gone through the facts and judgments placed before us by both sides and heard the matter at length. It appears clearly that the applicant is an outstanding worker and highly qualified. This encouraged the respondents to take work directly from her by the Joint Directors and Directors and initially the Deputy Secretary. In the year 1994, the respondents advertised to fill up four posts of Deputy Director in which they did not consider her application. She had to run to the Court to get the department acknowledge that she was eligible and that she should be interviewed and considered but nothing happened. To frustrate the process, as has been observed both by the Honble High Court and the Honble Supreme Court, an interview was held for a post which was not in her line and declared her ineligible and that the applicant had to enforce the order of the Honble High Court through the Contempt Petition. Her successive CRs indicate that she has never reported to a Deputy Director but at least to a Joint Director or Deputy Secretary. In fact, we have pointed out earlier that on two or three successive occasions, the Joint Directors and Director have observed that she has independently handled the work, confirming her assertion that she was doing the job of Deputy Director. This is also substantiated by the fact that she did not get her CRs written by any Deputy Director and the observation in the official noting that the job requires higher skill of a senior person. The objection to this evidence by the respondents is misplaced because this is definitely material fact to show that her job was indeed of supervisory nature. In fact, as stated by the applicant, this is substantiated by the fact that while she was considered for the post of Joint Director, the respondents did treat her period in the organization as that of a Supervisor.
13. On the question of changing the prayer, we do not see much merit in the respondents objection as all the applicant wanted was recognition of her work, discharging the duties of Deputy Director either by giving her pay equivalent to Deputy Director or appointing her as Deputy Director. Since the latter route is skillfully scuttled by the respondents, she had no option but to seek pay of the post of Deputy Director on the principle of equal pay for equal work. As pointed out earlier, this is not a new prayer. She has raised this issue in the very first Writ Petition.
14. We are convinced that the department has indeed extracted supervisory work from the applicant equivalent to that of Deputy Director and, therefore, she deserves to be benefited under the principle of equal pay for equal work. The argument of the respondents that there are several other Research Assistants who have been doing such type of work is of no consequence as we dont have the facts of those cases before us whereas the applicants case is crystal clear. In fact, had the department honourably considered her application for the post of Deputy Director when it was advertised and implemented the High Courts order with all due honesty, perhaps all this litigation could have been avoided. We also find it strange that the respondents found the applicant fit to hold the post of Joint Director but did not find her suitable for the post of Deputy Director.
15. We, therefore, conclude that the OA has merit and it is thus allowed. The respondents are directed to issue necessary orders to give the applicant pay and all other consequential benefits including honorarium (Rs.21000/-) attached to the post of Deputy Director from 26.09.1990, within a period of two months from the receipt of a certified copy of this order. No costs.
( P.K.Basu ) ( V. Ajay Kumar) Member (A) Member (J) /dkm/