Central Administrative Tribunal - Delhi
Shri Narinder Singh Puria vs Union Of India on 5 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.2206/2013 Reserved On:27.11.2014 Pronounced on:05.12.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Shri Narinder Singh Puria Age 47 yeas S/o Late Shri Gagan Singh Puria R/o Block No.6Q, House No.688, Baba Kharak Singh Marg, New Delhi-110001 Working as Accountant, Ministry of Law and Justice, Department of Legal Affairs, Litigation HC Section, 447, Delhi High Court Complex, New Delhi-110001. Applicant By Advocate: Shri R.N. Singh. Versus 1. Union of India Ministry of Law and Justice, Department of Legal Affairs, Shastri Bhawan, New Delhi-110001. (Through: its Secretary) 2. Ministry of Finance, Department of Expenditure, North Block, New Delhi-110001. (Through: its Secretary) .Respondents By Advocate: Shri D.S. Mahendru. ORDER
G. George Paracken, Member(J) Applicant has filed this Original Application aggrieved by the Annexure A-I Office Memorandum No.F.A-60011/19/2008-Adm.IV (LA) dated 12.04.2013 rejecting his request for upgradation of his Grade Pay from Rs.4200/- to Rs.4600/- at par with the Assistants working in Central Secretariat Service (CSS for short).
2. The brief facts of the case are that the Applicant is an ex-Indian Air Force official who was released on 31.10.2004 after completing 20 years of service. Thereafter, he was appointed as Accountant a Group B Gazetted post in the pay scale of Rs.5500-9000 in the office of the first Respondent, namely, Ministry of Law and Justice, Department of Legal Affairs w.e.f. 01.11.2004 on re-employment basis. His appointment was governed by the Ministry of Law, Justice and Company Affairs (Department of Legal Affairs) Accountant (Recruitment) Rules 1989 notified in exercise of the powers conferred by the proviso to Article 309 of the Constitution on and in supersession of the Ministry of Law, Justice and Company Affairs (Department of Legal Affairs), Accountant (Recruitment) Rules, 1979.
3. The method of recruitment as per the 1979 rules was as under:-
Transfer on deputation:
Assistants of Central Secretariat Service/Upper Division Clerks of Central Secretariat Clerical Service who have successfully undergone training in cash and accounts at the Institute of Secretariat Training and Management with 3 years experience in cash and accounts work failing which officers of the rank of Subordinate Accounts Service. Accountant (Section Officer) from any of the organized Accounts Departments e.g. Indian Audit and Accounts Department, Indian Defence and Accounts Service, Indian Railway Accounts Service, Indian Posts and Telegraphs Accounts and Finance Service (Period of deputation ordinarily not exceeding 3 years).
Under the 1989 Rules, the method of recruitment was amended as under:-
(a) 50% by transfer on deputation and
(b) 50% by transfer on deputation/transfer.
For Ex-Servicemen:
Transfer on deputation/re-employment.
In case of recruitment by promotion, deputation/transfer, grades from which promotion/deputation/transfer to be made was as under:-
Transfer on deputation or transfer on deputation/transfer
(i) Assistants of the Central Government Secretariat Service with 5 years regular service in the grade or with 10 years combined regular service in the grades of Assistant/UDC or UDCs of CSCS with 10 years regular service in the grade and who have undergone training in cash and Accounts work in the ISTM or equivalent and possess three years experience of cash, accounts and budget work.
(ii) failing (i) above, officers under the Central Government holding analogous posts or SAS Accountants or SAS passed clerks from any of the organized Accounts Departments.
XXX For Ex-Servicemen: Transfer on deputation/re-employment: The Armed Forces Personnel who are due to retire or to be transferred to reserve within a period of one year and having the requisite qualification and experience shall also be considered. Such officers will be given deputation terms up to the date on which they are due for release from the Armed Forces and thereafter they may be continued on re-employment (Re-employment up to the age of superannuation with reference to civil posts).
(Period of deputation including period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organization/Department of the Central Government shall ordinarily ).
4. Thus, the post of Accountant was having not only the complete and wholesome parity with that of Assistants in the CSS but also that the latter was the feeder post for the former. Both the posts were carrying the scale of Rs.1640-2900 (as per the 4th Pay Commission) and Rs.5500-9000 (as per the Vth Pay Commission).
5. Later on, the second Respondent, namely, Ministry of Finance, Department of Expenditure upgraded the pay scale of Assistants and Personal Assistants (PAs for short) in CSS/Central Secretariat Stenographer Service (CSSS for short) and placed them in the higher pay scale of Rs.6500-10500. In the said Memorandum, the Ministry of Finance has also conveyed decision to the Department of Personnel & Training that the entire issue of the pay scales of both CSS and CSSS officials will be referred to the 6th Pay Commission who shall examine it ab initio and take a holistic view including keeping in view the horizontal and vertical relativities. However, the 6th Pay Commission recommended the merger of pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 with Grade Pay of Rs.4200/- in PB-2 but they have not made any recommendation on the grant of higher pay scale to officials belonging to CSS and CSSS. Therefore, the Government of India, Ministry of Finance, Department of Expenditure, vide their Office Memorandum No.F.1.1.2008-IC dated 16.11.2009, has approved grant of the pay structure of Grade Pay of Rs.4600/- in the pay band PB-2 to the posts that existed in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of Grade Pay of Rs.4200 in the pay band PB-2. Accordingly, the Government extended the pay structure of Grade pay of Rs.4600/- to Assistants belonging to CSS etc. with effect from 01.01.2006. However, the Respondents did not increase the pay structure of the Accountant at par with the Assistants of CSS. The Applicant has, therefore, made a representation to the Ist Respondent on 14.06.2011 pointing out that the post of Accountant as per the Recruitment Rules notified by the Department of Legal Affairs, the pay scale of the post was Rs.1640-60-2600-EB-75-2900 (General Central Service-Group B, Non-Gazetted post) which was at par with the pay scale of Assistants of CSS and the said parity continued till the Respondents issued the Office Memorandum dated 16.11.2009. He has also pointed out that as per the Recruitment Rules for the post of Accountant, the feeder category is Assistants of CSS with 5 years regular service who have undergone Cash and Accounts Training from Institute of Secretariat Training and Management and possessing 3 years experience in cash and accounts and budget work. He has also stated that on his re-employment in the Department of Legal Affairs, he was granted the pay scale of Rs.5500-9000 at par with Assistants of the CSS and the said parity continued till 01.01.2006. He has, therefore, vide his representation dated 14.06.2011, requested the First Respondent to place him also in the Grade Pay of Rs.4600/- with effect from 01.01.2006 at par with Assistants of CSS. As the said Respondent did not take any action in the matter favourable to him, he sent another representation on 29.05.2012. Again, when he was not favoured by a reply in the matter, he sought information under the Right to Information Act, 2005 and came to know that the First Respondent was convinced in the matter and they had sent a proposal to the Second Respondent for upgradation of the post of Accountant. They have justified their proposal stating that as per the Recruitment Rules for the post of Accountant, it is filled up on deputation basis from amongst the Assistants of CSS with 5 years of regular service or 10 years of combined service as Assistant/UDC. After the upgradation of the pay of Assistants, they are not willing to come on deputation. The UDCs have no charm left for pursing deputation after putting in 10 years in the cadre as they wait for next turn for promotion to the grade of Assistant. They have also considered the practical problems being faced by them, the nature of duties handled by the Accountants and pointed out that the Assistants who were in the zone of consideration for the said post are getting the higher pay scale and thus created an anomalous situation. They have, therefore, recommended that the pay scale of the Accountant be made again at par with Assistants. However, the Department of Expenditure rejected their proposal stating that the Assistants belonging to the CSS, Armed Forces Headquarter Service, Indian Foreign Service B and Railway Board Secretariat Service and their counter part Stenographer Services have been placed in the Grade Pay of Rs.4600/- in PB-2 and since the post of Accountant does not belong to such Secretariat service, the said post is not covered under the OM dated 16.11.2009.
6. Respondents have also filed their reply to this OA stating that there is no parity between the post of Accountant and that of Assistant of CSS as the mode of recruitment, nature of duties and responsibilities, values thereof and hierarchy in the Respondents-Department are different for the post of Accountants with that of Assistants of CSS, Armed Forces Headquarter Service, Indian Foreign Service B and Railway Board Secretariat Service. In this regard, they have relied upon the judgment of the Apex Court in the case of State of Haryana and Others Vs. Charanjit Singh and others 2006 (9) SCC 321 wherein it has been held that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court. They have also relied upon the judgment of the Apex Court in the case of State of Madhya Pradesh and Others Vs. Ramesh Chandra Bajpayee 2010 (1) SCC (L&S) 287 wherein that court has defined the wholesale identity to cover the entire ground including source and mode of recruitment, appointment qualification, nature of work, value thereof, responsibilities, reliability, experience, confidentiality and functional needs. Further, they have stated that the post of Accountants in Department of Legal Affair is an ex-cadre post and as per para 3.8.5 of the 6th CPC report as duly reflected in Para III of Section II of Part B of the CCS(RP) Rules 2008 in connection with the accounts staff belonging to unorganized accounts cadre, the Government has consciously taken a decision that the existing relativity between the accounts related posts outside organized accounts cadres and ministerial posts will be maintained and the accounts staff belonging to unorganized Accounts Cadre shall be extended the corresponding replacement scale. Thus, the post of Accountant in the Ministry of Law and Justice has to be placed in the normal corresponding pay scale only.
7. We have heard the learned counsel for the Applicant Shri R.N. Singh and the learned counsel for the Respondents Shri D.S. Mahendru. In our considered view, the Department of Expenditure has rejected the proposal to upgrade the pay of the Accountant in the Legislative Department in a routine manner and without application of mind. The only reason given by the Department of Expenditure for rejecting the proposal of the Legislative Department is that the post of Accountant does not belong to Central Secretariat Service, Armed Forces Headquarter Service, Indian Foreign Service B and Railway Board Secretariat Service. The Legislative Department was very well aware of the fact but it has referred the matter to the Department of Expenditure in view of the undisputed fact that the post of Accountant with it and the Assistants of CSS were having the historical parity in the matter of pay scale from the beginning, i.e., from 1979 to 31.12.1995. The Department of Expenditure did even consider that aspect. They have also not even bothered to consider the fact that according to the Recruitment Rules for the post of Accountant in the Legislative Department, the first feeder cadre mentioned is Assistant of CSS. The said Recruitment Rules is still in vogue. They have not appreciated the well settled legal principle that the pay scale of a post cannot be lower than the pay scale of its feeder post.
7. The issue was considered by the Honble High Court of Delhi very recently also in its judgment in W.P.(C) 4606/2013 - D.G.O.F. EMPLOYEES ASSOCIATION AND ANR. Vs. U.O.I. & Others decided on 14.10.2014 and held that such historical parity with the CSS/CSSS cannot be simply disturbed. The High Court held as under:-
24. In the CATs order, several decisions which have declared that the principle of equal pay for equal work means parity in pay scales only when there is wholesale identity of the work and nature of the posts involved, have been relied upon. The principle as stated is correct. However, that itself does not explain why the almost four decades old parity even one decade after the fifth CPC recommendations (which too continued the parity) was sought to be disturbed on the basis of an event entirely outside Pay Commission recommendations, i.e. upgradation of scale on 25.09.2006, just prior to the Pay Commission recommendations implementation. The upgradation, initially confined only to CSS/CSSS was given to all others- save OF employees and AFHQ employees, on the basis of historical parity itself. However, ironically, because that parity (in upgradation) was omitted to the OF employees, it became a point of departure. Save and except that point of departure- which is the starting point of discrimination, there is no basis at all for disturbing OF employees who were classified along with non-secretariat employees in the matter of grant of same pay scales. It is not the respondents case that the Sixth CPC consciously went into the subject matter and recommended a break from the past - Para 3.1.14 and its reference to organizations like AFHQ, Ministry of External Affairs, UPSC etc specifically are meant to cover OF employees. In the opinion of the Court, the submissions of the respondents to justify the discriminatory implementation of the Sixth CPC recommendations are illogical and artificial; they are not based on any nexus with the objective of scientific pay revision, based on the need to have separate pay scales, differing from others who formed part of the same class (CSS/CSSS, Railway Board employees, Assistants in Railway Ministry, UPSC, AFHQ etc). The anxiety at somehow striving to reach to a basis for classification in this case is in effect a hyper or over-classification, the like of which was warned against by the Supreme Court in Roop Chand Adlakha v Delhi Development Authority 1988 Supp (3) SCR 253 :
But the process cannot in itself generate or aggravate the inequality. The process cannot merely blow-up or magnify in- substantial or microscopic differences on merely meretricious or plausible differences. The over-emphasis on the doctrine of classification or any anxious and sustained attempts to discover some basis for classification may gradually and imperceptibly deprive the article of its precious content and end in replacing Doctrine of equality by the doctrine of classification.
25. In another decision, i.e. T. Sham Bhat v Union of India 1994 Supp (3) SCC 340, the vires of Regulation 2 of the Indian Administrative Service (Appointment by Selection) Second Amendment Regulations. 1989 - the IAS Second Amendment Regulations was challenged before the Supreme Court. Holding the increase in number of years of continuous service of non-State Civil Service Class-I officers, required in the eligibility condition for selection to the Indian Administrative service, which deprived non-State Civil Service Class-I officers of the right to be considered for selection under the IAS Selection Regulations (which held the field for over 33 years), as unjust, arbitrary, unreasonable and contrary to legitimate expectations and Article 14 of the Constitution, the regulation was struck down as unconstitutional:
Further, we are unable to see, any reason as to why the period of 8 years continuous service of non-State Civil Service Class-I officers which made them eligible for selection to the Indian Administrative Service under the IAS Selection Regulations should have been increased to 12 years of their continuous service by Regulation 2 of the IAS Second Amendment Regulations. In fact, no plausible reason has been out forth as to why such increase was made. Since such increase in number of years of continuous service of non-State Civil Service Class-I officers to make them eligible for selection to the Indian Administrative service deprived them of the right to be considered for selection under the IAS Selection Regulations which held the field for over 33 years, with no palpable reason, Regulation 2 of the IAS Second Amendment Regulations which brought about such deprivation has to be regarded as unjust, arbitrary, unreasonable and that which arbitrarily affected the legitimate and normal expectations of non-State Civil Service Class-I officers and was that inhibited by Article 14 of the Constitution
26. The petitioners were treated historically as equals to CSS/CSSS employees and enjoyed equal pay and all benefits flowing from equal pay. This was based on the previous four instances of determinations by successive Pay Commissions that they performed equal work. No other evidence of complete identity of work was necessary in the circumstances of the case. The materials on the record do show that the Sixth CPC stated in more than one place specifically that historical parity in pay scales ought not to be disturbed. Such being the case, this Court is of the opinion that the CAT fell into error in holding that differentiation was facially justified, and could not be gone into given the nature of restricted judicial review. Consequently, a direction is issued to the respondents to fix the members of the Petitioner Association and other similarly placed Assistants working in Ordnance Factories and in OFB in the same pay scale as was given to Assistants similarly placed in CSS/CSSS, Army Headquarters, UPSC, CAT, MEA, Ministry of Parliamentary Affairs, etc. with effect from the same date as was first given to them. Consequential pay fixation and fitment orders shall be issued within eight weeks from today. The writ petition is allowed in the above terms without any order as to costs.
8. In the above facts and circumstances of the case, we allow this OA and quash and set aside the impugned Office Memorandum 12.04.2013 rejecting the request of the Applicant for upgradation of his Grade Pay from Rs.4200/- to Rs.4600/-. Further, we hold that Applicant is entitled to be treated at par with the Assistants in CSS as regards his pay scale is concerned. Accordingly, we direct the Respondents to maintain the historical parity in the matter and upgrade the pay of the Applicant from the Grade Pay of Rs.4200 to Rs.4600 in PB-2 at par with Assistants of CSS from the date they have been granted the aforesaid grade pay of Rs.4600/- with all consequential benefits including up-to-date arrears. The aforesaid direction shall be complied with, within a period of 2 months from the date of receipt of a copy of this order.
9. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh