Central Administrative Tribunal - Ernakulam
R. Ayyappan vs Union Of India on 13 March, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 735 of 2010
Tuesday, this the 13th day of March, 2012
CORAM:
HON'BLE Mr.JUSTICE P.R.RAMAN, JUDICIAL MEMBER
HON'BLE Mr. K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER
R. Ayyappan,
S/o. Late Raghavan,
House No. 31/44, Junior Janatha,
Vyttila P.O., Cochin-19. ... Applicant
(By Advocate Mr. U. Balgangadharan)
versus
1. Union of India, represented by the Secretary,
Ministry of Agriculture, Department of Animal
Husbandry, Dairying and Fisheries,
Krishi Bhavan, Rafi Marg, New Delhi.
2. The Secretary, Ministry of Finance, New Delhi.
3. The Director General, National Institute of Fisheries
Post Harvest Technology and Training, Kochi
(Formerly Integrated Fisheries Project) ... Respondents
(By Advocate Mr. Sunil Jacob Jose, SCGSC)
This application having been heard on 23.02.2012, the Tribunal on
13.03.12 delivered the following:
O R D E R
HON'BLE Mr. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER The applicant who was appointed as Iceman under the 3rd respondent retired as Operator (Ice Plant) on 30.11.2002. As per the 3rd pay revision, the pay scale of Operator (Ice Plant) was Rs. 455-700 and that of the Assistant Foreman was Rs. 380-560. As per the 4th pay revision, it was Rs. 1400-2300 for both. As per the 5th pay revision also the pay scale was Rs. 4500-7000 for both. The proposal to upgrade the pay scale to Rs. 5000-8000 in respect of Assistant Foreman (Ice Plant) and Operator (Ice Pant) and Freezing Plant Operator was not agreed to by the Government. However, in compliance with the directions of this Tribunal in O.A. No. 637/2003 filed by 5 Assistant Foremen, they alone in the cadre of Assistant Foreman was granted the pay scale of Rs. 5000-8000 with effect from 01.01.1996. In compliance with the directions given in O.A. No. 62/2006 filed by the applicant herein his request for granting the pay scale of Rs. 5000-8000 with effect from 01.01.1996 was considered and rejected by the Government. O.A. No. 735/2008 was filed by the applicant herein to set aside the order of rejection. The said O.A was disposed of with a direction to the respondents to refer the matter to the Ministry of Finance which after going though the same, call a meeting with the Department of Animal Husbandry, Dairying and Fisheries, Ministry of Agriculture, deliberate and arrive at a consensus on the revision of pay scale of the Operator (Ice Plant). A unanimous decision was taken to reject the claim of the applicant for parity with 5 Assistant Foremen who were given upgraded pay scale of Rs. 5000-8000 with effect from 01.01.1996, as per direction of this Tribunal. Challenging the aforesaid decision, this O.A. Has been filed by the applicant for the following reliefs:
(a) Call for the records leading to Annexure A8 and set aside the same.
(b) Direct the first respondent grant the pay scale of Rs.
5000-8000 to the Ice Plant operator with effect from 1.1.96 and consequential arrears and consequential revision of pension to the applicant;
(c) Declare that the applicant is entitled to get his pay revised to the scale of pay of Rs. 5000-8000 in the post of Ice Plant Operator with effect 1.1.96 and its consequential benefits viz. Arrears and revision of pension etc.
(d) Such other reliefs as this Hon'ble Tribunal deems fit and proper in the circumstances of the case.(a) Call for the records leading to Annexure A8 and set aside the same.
2. The applicant contended that the post of Assistant Foreman, which carried an inferior pay scale, was equated with the Operator (Ice Plant) by the 4th Pay Commission and the 5th Pay Commission granted higher pay scale to Assistant Foreman, pushing down the Operator (Ice Plant) to inferior pay scale. This calls for interference by this Tribunal. The Government unilaterally accepted the proposal to grant the the pay scale of Rs. 5000-8000 to the Assistant Foreman whereas it was denied to the Operator (Ice Plant) for no apparent reason.
3. The respondents in their reply statement submitted that the proposal to upgrade the pay of the Assistant Foreman, Operator (Ice Plant) and Freezing Plant Operator to the pay scale of Rs. 5000-8000 was not acceded to by the competent authority. The matter of revision of pay scale of any post depends on many factors like nature of work, qualification, duties and responsibilities and fixation of pay scales to various posts and cadres, which is within the domain of the expert body like, Pay Commission. Taking into account all such factors and in due compliance of the order of this Tribunal, the matter of upgradation of pay scale was elaborately examined by the Administrative Ministry and Finance Ministry and a unanimous decision was taken to reject the claim of the applicant for upgradation of pay. The required qualification of Operator (Ice Plant) is not in consonance with the recommendation of the 5th CPC contained in Para 52.111 and hence the upgraded pay of Rs. 5000-8000 cannot be extended to the applicant. The upgradation of pay of Rs. 5000- 8000 granted to the 5 Assistant Foremen could not be treated as a precedent.
4. We have heard Mr. U. Balagangadharan, learned counsel for the applicant and Mr. Sunil Jacob Jose, learned SCGSC appearing for the respondents and perused the records.
5. The contention of the applicant that the 5th CPC had granted higher pay scale to the Assistant Foreman is not correct. The fact is that the 5th CPC had recommended the pay scale of Rs. 4500-7000 to both Operator (Ice Plant) and Assistant Foreman. In compliance of the direction of this Tribunal in O.A. No. 637/2003 which became final, only 5 Assistant Foremen who were applicants therein, were granted the pay scale of Rs. 5000-8000 with effect from 01.01.1996. O.A. No. 735/2008 filed by the applicant herein was disposed of as under :
"16. It is trite that the requirement of qualifications and pay scales commensurate with the qualifications etc., are normally determined by the Administrative Ministry keeping in view the functional responsibilities, the future expansion, and pay scale normally is co-related with the qualifications, experience, functional responsibilities etc., and it is the administrative ministry which normally on a scientific basis work out and make its recommendations. Ministry of Finance, the source of funds for meeting the expenditure, normally considers the entire issue, with particular reference to the financial implications. Whereas the Administrative Ministry bring in a comparison between the Ice Plant Operator on the one hand and the Assistant Foremen on the other, in respect of pay scales, functional responsibilities, qualifications for promotion from the feeder grade etc., the Ministry of Finance reject the proposal giving difference in the qualifications etc. There thus, appears to be some lack of communication and this communication gap could well be filled up by arranging a meeting between two senior officers (of the rank of Joint Secretary or above) of the two ministries, so that in the deliberations, the Ministry of Agriculture could put forth its considered view to the Ministry of Finance. The latter Ministry thereafter may come to a conclusion. Such a dialog amongst the two ministries is not only healthy but essential as well, as it is the administrative Ministry which has to extract work from the individuals concerned and pay package is a consideration for the work involved.
17. The Apex Court has in a number of cases held that prescription of scale of pay should normally be dealt with by expert bodies/committees. (See the latest decision of the Apex Court in the case of Union of India v. Dineshan K.K.,(2008) 1 SCC 586, wherein the Apex Court has held as under:
"It has been observed that equation of posts and equation of pay structure being complex matters are generally left to the executive and expert bodies like the Pay Commission, etc."
18. In view of the above, justice would be rendered, if a direction to the respondents be given that the first respondent, with his recommendations already projected equating the Ice Plant Operator with either Asst. Foreman or Foreman as the case may again refer the matter to the Ministry of Finance, which, after going through the same, call for a meeting, and both the representatives would deliberate on the same and arrive at a consensus. If the decision is to revise the pay scale of Ice Plant Operator, the same may be duly authenticated and if the applicant is one of the beneficiaries, his entitlement be worked out and the arrears of pay and allowances (if any) be granted to him. In addition, arrears of pension be worked out and the same also made available to the applicant. The following decisions be kept in view while considering payment of arrears of pay and allowances."
6. The proposal of the Administrative Ministry to grant the pay scale of Rs. 5000-8000 to the post of Operator (Ice Plant) alongwith 2 other posts was rejected by the Finance Ministry. The direction of the Tribunal was that both the Departments should sit together, deliberate on the issue of pay scale of Operator (Ice Plant) and arrive at a consensus. A consensus was reached after taking into account the qualification of Operator (Ice Plant)/Freezing Operator etc in an elaborate examination, to reject the claim of the applicant for upgradation of pay. The competent authority has applied his mind to all relevant factors and taken a judicious decision as per Annexure A-8. The applicant has no tenable ground to justify interference of this Tribunal in the mater of upgradation of pay scale fixed as per 4th and 5th CPCs. It is now more than 9 years since the applicant has retired and 6 years since the the implementation of the 6th CPC.
7. The learned counsel for the applicant has claimed that this case is covered by the decision of this Tribunal in O.A.No. 637/2003. The relevant part of the order is extracted as under:
"6. We have heard the learned counsels for both the parties and gone through the relevant pleadings. No doubt that the pay scales are determined only by expert bodies like Pay Commission. There is also no doubt that differences in educational qualifications is an important ground and this general principle has been adopted by the Pay Commission to determine different pay scales to different categories of employees performing similar duties. Hon'ble Supreme Court in a catena of judgments have held that it is for the administration to decide the question whether the two posts which very often may appear to be same or similar should carry equal pay, it is not for the courts or tribunals to interfere, and such matters should be left to expert bodies like Pay Commission and courts should not normally issue direction in these matters. In Mew Ram Kanojia Vs. All India Institute of Medical Sciences and others (ATR 1989 (2) SC 17) the Apex Court has held as under:-
"Merely because Speech Therapists performing similar duties and functions in other Institutions are paid higher pay scale is no ground good to accept the Petitioners claim for equal pay. There may be differences in educational qualifications, quality and volume of work required to be performed by the Hearing Therapists in other Institutions. In the absence of any material placed before the court, it is not possible to record findings that the Petitioner deserves equality before law."
Further, classification on the basis of educational qualification is a well accepted principle in administrative jurisprudence. In The State of Jammu and Kashmir Vs. Trilokinath Khosa and others, AIR 1974 SC 1, the Hon'ble Supreme Court has held that:
"The classification of Assistant Engineers into Degree- holders and Diploma-holders could not be held to rest on any unreal or unreasonable basis. The classification was made with a view to achieving administration efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment."
The Apex Court has also held in various judgments that determination of pay scale is the primary function of the executive and not that of the judiciary. In Secretary, Finance Department and Others Vs. West Bengal Registration Services Association and others, AIR 1992 SC 1203 the Apex Court has held as under:
"It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary, and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant date and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. In the instant case presumably for this reason that the Judicial Secretary who had strongly recommended a substantial hike in the salary of the Sub Registrars to the Second (State) Pay Commission found it difficult to concede the demand made by the registration Service before him in his capacity as the Chairman of the Third (State) Pay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice."
Similar judgment has been pronounced by the Apex Court in the case of State of West Bengal and others Vs. Sri Deb Kumar Mukherjee and others (JT 1995(3) SC 333) wherein it has been held as under:
"The duties performed by the Inspectors in two grades may be the same, but no fault can be found with the classification. It is settled by a string of authorities of this Court that classification in the cadre on the ground of selection based on merit is permissible. It is well known in service jurisprudence that selection grade and super time scale based on seniority cum merit are permissible. The High Court fell into patent error in setting aside the classification on the ground of discrimination."
7. However, we observe that the respondents have lost sight of the fact that the post of Processing Assistants in the IFP was already equated with that of the Assistant Foreman. This Tribunal in OA 1323/92 (supra) has already held that the processing section is also a shop where works are done and food are produced just like the Engineering Workshop. The nature of duties of the Processing Assistants is similar to that of the Assistant Foreman and the Processing Works also involve the use of various equipments and machineries. The Supervisor by virtue of his experience possess enough knowledge in the operation of these equipments to guide his subordinates in the maintenance and use of these equipments apart from processing of food. Therefore, it was ordered that the Food Processing Section should be treated at par with the workshop and the Processing Assistants should be given the scale applicable to the Assistant Foreman in the Workshop. It is to be noted that at that time the Assistant Foreman in the Workshop (Applicants in the present case) were in a better position and the Processing Assistants were seeking parity with the Applicants. However, now the position is in the reverse order. It is now the turn of the Applicants to seek parity with the Processing Assistants. Once there is a finding by this Tribunal that the post of Processing Assistant and the post of Assistant Foreman in the Workshop are to be treated alike in the matter of grant of scale of pay, this position cannot be altered now to the disadvantage of the Applicants. Since the Vth CPC has granted the scale of pay fo Rs. 5000-8000 to the Processing Assistants who were declared at par with the Applicants, the Applicants cannot be denied the same pay scale of s. 5000-8000. It is also seen that the Assistant Foreman in CIFNET who are also non-Diploma holders have been granted the pay scale of Rs. 5000-8000 by the Vth CPC. Moreover, there cannot be any distinction between direct recruits and promotees in the same cadre so far as grant of pay scale is concerned. In the case of Kamlakar and others Vs. Union of India and others, AIR 1999 SC 2300 the Hon'ble Apex Court has held that no distinction could be made between the direct recruits and promotees in the matter of pay scale. The Apex Court has held as under:
"We have considered the limited issue. We are of the view that all these appellants should get the same relief s the appellants in the earlier Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in the one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters common to all of them before the impugned order of the Government of India was passed on 2.7.1990 - then any distinction between Data Processing Assistants who were direct recruits and those who were promotes, is not permissible. We, therefore, reject the respondents' contention. We have examine the record and the common points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed."
9. In view of the above discussion, we are of the considered view that the denial of the pay scale of Rs. 5000-8000 to the Applicants with effect from 1.1.96 is arbitrary and illegal. Accordingly, the OA is allowed. A5 order dated 31.3.03 is quashed and set aside. We hereby declare that the Applicants are entitled for the scale of pay of Rs. 5000-8000 with effect from 1.1.96. They are also entitled for arrears of pay in the revised scale of Rs. 5000-8000 from 1.1.96. These directions shall be complied with, within a period of two months from the date of receipt of this order. No costs."
8. After taking notice of the settled position that it is for the administration to decide the question as to whether 2 posts which very often may appear to be same or similar should carry equal pay, it is not for the Courts/Tribunals to interfere and such matters should be left to the expert body like, Pay Commission, this Tribunal interfered the matter in O.A. No. 637/2003 on the following grounds:
(i) Processing Assistants were declared on par with the applicants Assistant Foremen and they should be treated alike in the matter of grant of scale of pay;
(ii)There can not be any distinction between direct recruits and promotees in the same cadre so far as grant of pay scale is concerned;
These two grounds are not available to the applicant in the present O.A. On facts and issues , the present O.A. is clearly distinguishable from O.A. No. 637/2003. Therefore, the decision of this Tribunal in O.A. No. 637/2003 is not applicable to the instant O.A. We do not find any reason for interference by this Tribunal in the matter of upgradation of the pay scale of the applicant.
9. Devoid of merit, the O.A. is dismissed with no order as to costs.
(Dated, the 13th March, 2012)
K GEORGE JOSEPH JUSTICE P.R.RAMAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
cvr.