Delhi High Court
Union Of India (Uoi) And Ors. vs Shri J.R. Chobedar on 23 September, 2002
Author: S.B. Sinha
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT S.B. Sinha, C.J.
1. This writ petition is directed against a judgment and order dated 6thDecember 2000 passed by the Central Administrative Tribunal, Principal Bench in OA No. 208/1997 whereby and whereunder the Original Application filed by the respondent herein was allowed.
The basic fact of the matter is not in dispute.
2. The respondent holds a civil post in the Border Security Force. He had been working as Joint Assistant Director which post has since been redesignated as Accounts Officer in the scale of pay of Rs. 2375-3500. He, on or about 24th August 1995, made a representation as regards upgradation of his post and revision of scale of pay. He had later on been promoted to the post of Assistant Director in the scale of pay of Rs. 3000-4500 (pre-revised) w.e.f. 2nd July 1997 on an ad hoc basis. He later on was placed in the scale of pay of Rs. 10,000-15,200 on officiating basis w.e.f. 23rd March 1998. His afore-mentioned representation dated 24th August 1995 was rejected on 30th August 1995. He thereafter filed a detailed representation to the Director General of Border Security Force on 25th September 1995. The said representation was also rejected. He thereafter filed an Original Application before the learned Tribunal.
3. In the said Original Application, inter alia, it was contended that the volume of work, the educational qualification and all other relevant factors being similar to his counter-part, he should be given the same scale of pay which is applicable to other organized sectors.
4. According to the respondents, however, although a recommendation to that effect had been made, the matter was referred to the Ministry of Finance and the said Ministry was of the opinion that the petitioner's representation cannot be accepted as the BSF Accounts Cadre was not an "organized accounts service". The learned Tribunal although noticed the contentions raised on behalf of the petitioners to the effect that the Accounts Department of the Border Security Force is an organized accounts service similar to that of the Military Engineering Service, proceeded only on the basis of doctrine of 'equal pay for equal work'. We may notice that before the learned Tribunal, the respondents herein relied upon a decision of this court in T.N. Natrajan and Ors. v. Union of India and Ors. in CWP 176/1979 dated 3rd September 1980 wherein it was held:
"Mr. A.B. Saharya, the learned counsel for the petitioners, took great pains in going through the report of the Third Pay Commission as contained in Chapter 8. The only reason contained in the impugned orders for the non-admissibility of the special pay to the petitioners is that they do not belong to "organized service" Group A. The counsel urges that there is no warrant for the respondents to so construe the recommendations of the Third Pay Commission as also the orders of the Government contained in the resolution dated May 1, 1974 and the sanction of the President contained in the memorandum dated August 20, 1975. The contention is that there is no basis to restrict the grant of the special pay only to those officers belonging to the Military Engineering Services comprising of three branches namely: Engineering Cadre, Surveyor of Work Cadre and Architects Cadre.
The first question for determination is whether the service to which the petitioners belong has been regularly constituted as Class I Service. By notification dated November 21, 1969, published in the Official Gazette on December 6, 1969, the President in exercise of the powers conferred by the proviso to Article 309 of the Constitution, made rules regulating the methods of recruitment to Class I and Class II posts in the Military Engineering Services. The Service (Administrative Cadre) Recruitment Rules, 1969.....
Article 309 provides for the enactment of rules and regulations relating to the recruitment and conditions of Govt. Servants. In regard to the Central Services, the authority is given to the Central Legislature. Under the proviso rules can be made by the President with regard to the Central Services. It is not obligatory to make rules of recruitment before a service is constituted and the posts filled. But the framing of the rules does suggest the constitution of a service and the creation of a cadre. The channel of promotion from the lower grade to the higher grade provided in the Recruitment Rules is a weighty circumstance in favor of holding the regular constitution of a cadre. Cadre means the strength of the service or part of service sanctioned as a separate unit."
5. However, the said submission was accepted by the Tribunal only in the following terms:
"Based on the aforesaid judgment, Shri Gupta has contended and, in our view, justifiably, that the PAD of BSF satisfies all the ingredients found in the case of the officers of the Military Engineering Service for being termed an Organized Accounts Service."
6. The learned Tribunal thereafter proceeded to consider the decisions cited on behalf of the petitioner herein on the basis of the doctrine of equal pay for equal work and held:
"14. If one has regard to the aforesaid decisions cited by Shri. Gupta, we find that the applicant has made good his claim contained in the O.A. In the circumstances, the impugned Memorandum of 30.8.1995 at Annexure A-13, Memorandum of 6.9.1995 at Annexure A-15 as also Memorandum of 7.12.1995 at Annexure A-17 are quashed and set aside. We further hold that the pay scales of the various posts in the PAD of BSF are liable to be revised and brought on par with the scales of other organized Audit and Accounts Services under the Government of India. Respondents are accordingly directed to upgrade 80% posts in PAD of BSF on lines with the Controller General of defense Accounts (CGDA) cadre etc."
7. It was, therefore, directed;
"15. Based on the aforesaid directions, respondents will consider the claim of the applicant for grant of higher pay scale to 80% of the posts in the PAD of BSF provided he is found eligible. In case he is found eligible for being placed in the 80% of the posts, he will be entitled to all consequential benefits with effect from 1.4.1987."
8. Ms. Anjana Gosain, the learned counsel appearing on behalf of the petitioner would, inter alia, submit that even the Fourth Pay Commission did not make any recommendations for revision of pay of the Accounts Department of the Border Security Force.
9. It has been contended that the question as to whether the respondent herein was entitled to the similar relief or not, was a matter which could be considered only by an expert body. It may be, the learned counsel would contend, that the nature of qualification, the nature of work and other duties assigned to the said post are similar to those of the counter-parts of the respondent working in the other Departments but the said service is not an original accounts service. According to the learned counsel, several other factors were required to be taken into consideration by the learned Tribunal for the purpose of grant of the relief namely, the recruitment rules, the chance of promotion, the source of recruitment etc. It was furthermore submitted that the order of the Ministry of Finance dated 12th June 1987 could not have been brushed aside by the learned Tribunal not only because the the Accounts Division of the BSF is not an organized cadre but is also even not operating under CAG/CGDA.
10. In any event, contends the learned counsel, the learned Tribunal committed a serious error in issuing the afore-mentioned directions which is beyond its jurisdiction.
11. In support of the said contentions, reliance was placed on Shiba Kumar Dutta and Ors. v. Union of India and Ors., and State of West Bengal and Ors. v. Hari Narayan Bhowal and Ors. , 1994(2) SLR 54.
12. Mr. G.D. Gupta, the learned senior counsel appearing on behalf of the respondent, on the other hand, would submit that the service in question is not only an organized accounts service but also the petitioners reports directly to the CGDA.
13. The learned counsel drew out attention to the fact that the statements made in para 4.8 of the Original Application had not been traversed at all by the petitioner herein in their counter-affidavit filed before the Tribunal. Para 4.8 of the Original Application reads thus:
"4.8 That it may be stated that the pay and allowances of the staff of PAD BSF remained at par with the pay and allowances of the staff of CAG and other Accounts Departments like Railways, P&T etc. till March, 1984. The first disparity arose in March, 1984 when there was re-structuring of Indian Audit & Accounts Department (hereinafter referred to as the "IA & AD") into the separate cadres, i.e. Audit Cadre and Accounts and Establishment cadre. As a result of the said re-structuring, higher pay scales were given to the 80% of the staff on the audit side."
14. In the counter-affidavit, the said contention were admitted placing strong reliance on the decision of this Court in T.N. Natarajan and Ors. v. Union of India and Ors. (supra), the learned counsel would contend that there is absolutely no reason as to why the said decision shall not be followed particularly when the Accounts Department of the Border Security Force is a separate unit. The learned counsel would contend that there exist recruitment rules the Border Security Force in respect of the posts of Accounts Officer. It has further been contended that it is not correct to say that the audited reports are not placed to the Controller General of Accounts. IN this connection, our attention has been drawn to the following passage from the rejoinder to the counter-affidavit filed in the writ petition by the respondent:
"There are no grounds to say that PAD is not an organized Accounts Department. It was created by the President with the approval of Ministry of Finance and concurrence of the Comptroller and Auditor General of India. In the concluding sentence of para 11.38 of the report of the Fourth Central Pay Commission, the Commission had allowed replacement pay scales to 'other Accounts Posts'. The 'other Accounts Posts' means, the posts which are not existing in the organized accounts Departments and Audit Departments and listed i para 11.35 of the report of the Fourth Central Pay Commission. Whereas in the Pay and Accounts Division of B.S.F., the name, nomenclature of the posts, duties and responsibilities and job assignments are completely the same. The petitioners have not quoted even a single example where duties and responsibilities of the staff of PAD are less than that of any other organized Accounts Departments. In fact, PAD in B.S.F. in part and parcel of the Organized Accounts Department of the Controller General of Accounts. The complied accounts are submitted to the Controller General of Accounts through Ministry of Home affairs by PAD directly and the PAD of B.S.F has been placed under Director General, B.S.F. only for disciplinary purpose and also to maintain efficiency. The PAD works independently under the Financial Adviser and there is no interference whatsoever by Director General, B.S.F. and it performs all the duties and responsibilities assigned to any other PAD in the Government of India when there is no difference in the duties and responsibilities of PAD with that of any other organized Accounts Department, not allowing equal pay tentamount to hostile discrimination."
15. Having regard to the order proposed to be passed by us, it is necessary to delve deep into the respective contentions of the parties herein. Suffice it to point out that before us, the learned counsel for both the parties, not only have referred to the pleadings before the Tribunal but also several documents. Some of the documents have been produced before this court for the first time. The question as to whether the Accounts Office of the Border Security Force is an organized accounts service or it function under CAG or CGDA or not, in our opinion, ought to have received serious consideration at the hands of the learned Tribunal. The learned Tribunal unfortunately centered round its decision on the doctrine of 'equal pay for equal work', without addressing itself the correct question.
16. It is beyond any dispute that the representation of the respondent was rejected only because the Ministry of Finance was of the opinion that the BSF Accounts Cadre was not an organized accounts service. The core question, therefore, was as to whether the afore-mentioned stand of the Ministry of Finance was correct or not. The learned Tribunal, unfortunately, although noticed all the contentions raised by the respondent herein and further noticed the decision of this court in, T.N. Natarajan and Ors. v. Union of India and Ors. (supra), as indicated hereinbefore, but failed to arrive at any positive finding as regards thereto. The finding of the Tribunal on the said issue is not only perfunctory but also bereft of all reasons.
17. In a vital issue of this nature, the learned Tribunal was obligated to take into consideration the materials brought on record of the parties to the lis but also arrive at a definite finding as to whether the Pay and Accounts Division of BSF is an organized cadre or even under CAG or CGDA. This court is exercise of its jurisdiction under Article 226 of the Constitution of India only exercises the power of judicial review. All contentions relating to the service dispute must necessarily be addressed by the Tribunal itself at the first instance. Only in some rare cases where a grave injustice may be caused and in some cases having regard to the interest of justice, this court may determine such questions at the first instance. Furthermore, as noticed hereinbefore, before us, the learned counsel for the parties referred to various documents which the learned Tribunal had no occasion to consider at all. We have purposely not referred thereto so that it may not be considered to be a conscious decision on our part either way.
18. In this view of the matter, we are of the opinion that the matter should be considered afresh by the learned Tribunal.
19. For the reasons afore-mentioned, this writ petition is allowed; the impugned judgment is set aside and the matter is remitted to the learned Tribunal for consideration of the matter afresh. The parties hereto shall be at liberty to raise all contentions before the learned Tribunal and bring before it additional materials, if they so desire. In the facts and circumstances of the case, there shall be no order as to costs.