Central Administrative Tribunal - Ernakulam
R. Aravindaksha Kurup vs Union Of India Represented By on 30 March, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 201 of 2013
with
O.A. No. 180/00482/2014
&
O.A. No. 180/00297/2015
Thursday, this the 30th day of March, 2017.
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
O.A No. 201/2013
1. R. Aravindaksha Kurup,
S/o. T.N. Raghavan Pillai,
Postal Assistant, Vadakumthala East,
Residig at : Saranam, Puthan Sanketham,
Koivila (P.O), Kollam District - 691 590.
2. Thankamani. P., W/o. Raju. N,
Postal Assistant, Kalayapuram,
Residing at: Rajbhavan, Edakkidam (P.O),
Ehukone, Kollam District - 691 505.
3. K.C. Unnikrishnan Pillai,
S/o. K. Chellappan Pillai,
Postman Karunagepalli H.O,
Residing at : Kaleeckal Veedue,
S.W. Thazhava, Thazhava (P.O),
Kollam District - 690 523.
4. B. Ajaya Kumar,
S/o. P. Balakrishnan Achary,
Postman Kollam HO,
Postal Assistant Pallithottam,
Residing at : Kalluvila Puther Veedu
(Aryamritham), Peroor, Thattrkonam P.O.,
Kollam - 691 005. - Applicants
[By Advocate Mr. V. Sajith Kumar]
Versus
1. Union of India represented by
Secretary to Government,
Department of Posts, Government of India,
New Delhi - 110 001.
2. The Chief Post Master General,
Kerala Circle, Trivandrum - 695 001.
3. The Senior Superintendent of Post Office,
Kollam - 691 536. - Respondents
[By Advocates Mr. N. Anilkumar, Senior PCGC (R)]
II O.A No. 482/2014
1. K.S. Sajeev, S/o. Sreedharan (late),
Postal Assistant, Pallithottam - 691 006.
Residing at : Sreesailam, Muruuthal-B,
Perinad (P.O), Kollam - 691 601.
2. A.S. Chandrika Kumari,
W/o. K. Sajeev,
Postal Assistant,
Thirumullavaram - 691 012.
Residing at Sreesailam,
Maruuthal-B, Perinad P.O.,
Kollam - 691 601. - Applicants
[By Advocate Mr. V. Sajith Kumar]
Versus
1. Union of India represented by
Secretary to Government,
Department of Posts,
Ministry of Communications,
Government of India, New Delhi - 110 001.
2. The Chief Post Master General,
Kerala Circle, Trivandrum - 695 033.
3. The Senior Superintendent of Post Office,
Kollam Postal Division,
Kollam - 691 001. - Respondents
[By Advocate Mr. N. Anilkumar, Senior PCGC (R)]
III O.A No. 297/2015
K. Hariraj, S/o. Karthikeyan (late),
Postal Assistant, Kollam Postal Division,
Department of Posts, Kollam,
Cutcherry (P.O), Kollam - 691 013.
Residing at Vinayak, Kandachira,
Perinad (P.O), Kollam - 691 601. - Applicant
[By Advocate Mr. V. Sajith Kumar]
Versus
1. Union of India represented by the
Secretary to Government,
Department of Posts, Ministry of Communications,
Government of India, New Delhi - 110 001.
2. The Chief Post Master General,
Kerala Circle, Trivandrum - 695 033.
3. The Senior Superintendent of Post Office,
Kollam Postal Division, Kollam - 691 001. - Respondents
[By Advocate Mr. P.R. Sreejith, ACGSC]
The application having been heard on 24.03.2017, the Tribunal
on 30.03.2017 delivered the following:
ORDER
Per: Mrs. P. Gopinath, Administrative Member The applicants in all O.As similarly placed are aggrieved by the inaction on the part of the respondents to fix the pay of the applicant on appointment by promotion from Postman to the post of Postal Assistant by fixing the pay at the minimum of the entry pay as prescribed for the direct recruit Postal Assistants in the VI CPC pay band. The request for stepping up of pay has been rejected by the 3rd respondent by order dated 27.06.2013. Applicants argue that there is no justification in denying the basic pay applicable to direct recruits to those appointed as Postal Assistants from the feeder category of Postman.
2. Applicants argue that there was an anomaly in the fixation of pay between Promoted Postal Assistants and Direct Recruit Postal Assistant after the implementation of 6th Central Pay Commission report. Employees in the Postman cadre prior to 01.01.2006 on promotion to the cadre of Postal Assistants were fixed with pay less than that of those directly recruited. This was taken up in the JCM meeting and the official side responded by stating that pay on promotion would be fixed at the prescribed minimum of the entry pay as provided for direct entrants in the revised pay rules, irrespective of the fact whether direct recruitment has actually taken place or not. However, in spite of the commitment made, the decision of JCM is yet to be implemented.
3. The applicants argue that their claim to fix pay at the prescribed minimum of the entry pay as prescribed for the direct recruit Postal Assistants in the revised pay rule or by stepping up of pay with juniors cannot be rejected as both are holding the same post, doing the same job and hence are not entitled to be discriminated. The Postal Assistants recruited through various divisions / districts will be placed in a common Circle/State gradation list, wherein seniority is fixed based on the date of entry into service. The next normal line of promotion for a Postal Assistant is placement in Lower Selection Grade post (LSG) based on length of service and availability of vacancy. On preparation of such a gradation list, there will be many juniors to the applicants who are drawing higher pay. Postal Assistants directly recruited and those promoted from the feeder category, are having same duties and responsibilities. They are in the same category/cadre. Both of them will be included in the common Circle gradation list for being considered for LSG. There is hence no justification in denying the basic pay applicable to the direct recruits to those appointed from the feeder category on promotion.
4. Equal pay for equal work, though not a fundamental right guaranteed to Government servants, is a doctrine in consonance with principle of equality enshrined under Article 14 of Constitution of India, argue the applicants. A hostile discrimination, which is illogical and irrational and without an intelligible differentia, which has a reasonable nexus with the object sought to be achieved will not pass the test of reasonableness. Similarly placed cannot be discriminated in the matter of pay scale as held in Noida Enterprises Association v. Noida Authority 2009(1) SCC (L&S) 672. Similar view was taken by the Principle Bench of the CAT in O.A No. 164/2009 by its order dated 19.02.2009.
5. Reliefs sought by the applicant is :
'i) to direct the respondents to fix the pay of the applicants on appointment by promotion to the post of Postal Assistant by fixing the pay at the prescribed minimum of the entry pay as prescribed for the Direct Recruit Postal Assistants in the revised pay rules.
ii) Alternatively direct the respondents to grant stepping up of pay to the applicants with that of direct recruited, junior Postal Assistants with effect from the date of entry into the Postal Assistant cadre and grant all consequential benefits.'
6. Respondents submit that all the applicants in the O.As while working as Postman were promoted to the cadre of Postal Assistants, on passing the examination for appointment to the cadre of Postal Assistants. Applicants are seeking fixation of pay in the minimum of the entry pay for Postman i.e. Rs. 8460/- and Postal Assistants i.e. Rs. 9,910/-. The claim for entry pay as prescribed in the VI CPC revised pay rule for Postal Assistants who are direct recruits is not admissible to the applicants herein as they belong to a different class of those who are promoted to the cadre of PAs. The said entry pay of Postal Assistants who are direct recruits is fixed based on the approval given by the Government of India as per the recommendations of the 6th CPC, whereas fixation of pay of an official on promotion to higher grade is governed by FR 22(1)(a)(i) uniformly for all GOI employees across the country. Thus the pay of the applicants was also fixed in accordance with the said FR Rule. The representations were disposed of vide Annexure A-1 order in accordance with the relevant rules governing the field. The applicants approached this Tribunal by filing the instant O.A seeking to quash Annexure A-1 and to direct the respondents to fix the pay of the applicants on promotion to the post of Postal Assistant (PA) by fixing the pay at the prescribed minimum of the entry pay, at par with the direct recruit Postal Assistants in the revised pay rules. During the pendency of the O.A, the case of the applicants was examined in accordance with the Postal Directorate letter No. 1-9/2010-PCC dated 05.01.2011 produced as Annexure R-1. Approval of the competent authority for stepping up of pay of the applicant at par with the pay of direct recruit junior Shri T.P. Anilkumar with effect from 31.12.2007 was accorded. Thus in the light of the above submissions made before this Tribunal the O.A was closed as infructuous.
7. A detailed examination of the above case revealed that the junior direct recruit Shri T.P. Anilkumar was in fact working as PA, Chengannur under another Division with effect from 31.12.2007 and had joined Kollam Division on mutual transfer on 03.08.2009. As per the provisions of para 2 of Annexure R-1, stepping up of pay of seniors can be claimed only in case of those cadres which have an element of direct recruitment and in cases where a directly recruited junior is actually drawing more basic pay than the senior. In such instances, the basic pay of the senior will be stepped up with reference to the basic pay of the directly recruited junior provided they belong to the same seniority list for all purposes. As the stepping up of pay given to the applicants in the instant O.A was against the above instructions on the subject, the case was re-examined and ordered as follows:
'i) Concurrence accorded vide IFA No. 396 dated 18.11.2013 in connection with stepping up of pay in respect of Shri Aravindaksha Kurup and 3 others with Shri T.P. Anilkumar requires to be reconsidered and revised MA in O.A No. 201/2013 needs to be filed.
ii) All other cases may be decided after the final outcome/verdict in O.A No. 201/2013 filed by Shri Aranvindaksha Kurup and 3 others as well as in O.A No. 482/2014 filed by Shri K.S Sajeev and another i.e. these O.As under consideration.' As the stepping up of pay given to the applicants was against the instructions on the subject, Review Application No. 11/2015 was filed by the respondents before this Tribunal. However, the Tribunal was pleased to dismiss the RA solely on the ground of delay vide Annexure R-3 order dated 26.06.2015.
Challenging the said order, the respondents approached the High Court of Kerala by filing OP (CAT) No. 168/2016. The High Court of Kerala vide Annexure R-4 order set aside Annexure R-2 and Annexure R-3 orders of this Tribunal and remitted the case back for considering the O.A afresh vide judgment dated 27.07.2016.
8. The applicants while working as Postmen were promoted to the cadre of Postal Assistant on passing the examination for appointment to the cadre of Postal Assistants. While so, the applicants submitted representations seeking fixation of pay in the minimum of the entry pay for Postman i.e. 8460/- and Postal Assistants i.e. Rs. 9,910/-. Respondent would argue that the claim for entry pay as prescribed for the direct recruit Postal Assistants in the revised VI CPC pay rule is not admissible to the applicants herein, since entry pay of the direct recruit Postal Assistants was fixed based on the approval given by the Government of India on the recommendations of the 6th CPC for all similarly placed persons of GOI. Whereas fixation of pay of an official on promotion to a higher grade is governed by FR 22(1) (a) (i) and the pay of the applicants was also fixed in accordance with the said rule. The pay of an official so fixed may be less than the pay of an official who has been directly recruited to the same post. Respondents argue that applicants have cited no rule whatsoever, by which the pay of an official on promotion should be the minimum of the entry pay prescribed for Direct Recruit Postal Assistants. Respondent also brings to our notice that the issue regarding the entry level pay of a direct recruit PA and a promotee PA has been discussed at length by this Tribunal in its order dated 08.02.2016 marked as Annexure R-5 in an exactly identical O.A No. 163/2013 reproduced as under:-
'The Vth CPC headed by a Supreme Court Judge in its wisdom and the Nodal Ministry, Department of Personnel has drawn up the methodology of fixation of pay on initial joining of a post by direct recruits and on promotion for departmental employees in the same manner for all services of the Government of India, across all pay bands, in the country. Pay fixation formulae have been drawn up based on certain principles made uniformly applicable to all employees covered by the 6th CPC.'
9. Stepping up of pay of a promotee at par with a direct recruit junior is governed by Annexure R-1 clarification of Ministry of Finance which stipulates that stepping up of pay of seniors can be claimed only in the case of those cadres which have an element of direct recruitment and in case where a directly recruited junior is actually drawing more basic pay than the senior.
10. In such cases, the basic pay of the senior will be stepped up with reference to the basic pay of directly recruited junior provided they belong to the same seniority list for all purposes. In the instant case, the applicants who belong to Kollam Postal Division aver that a junior in Thrissur Postal Division is drawing more pay than the applicants. This averment is not sustainable in view of the Annexure R-1 well defined instructions governing the field. The junior with whom applicants in O.A No. 201/2013 are claiming parity did not belong to the same seniority list, but was a migrant from another Division to applicant's division, and hence a parity is not admissible. The averment of the applicants that the direct recruit junior mentioned herein and the applicants belong to the same Circle Gradation List is not relevant as stepping up of pay is to be made with reference to the Division Gradation list and not Circle Gradation List. The Circle Gradation list is maintained only for effecting promotion to the post of norm based Lower Selection Grade posts, which is a Circle cadre. Applicants on promotion are placed in the Divisional Gradation List. Recruitment to the cadre of PAs is being done Division wise on the basis of vacancies arising in each Division only and not on the Circle level as a whole. An official's seniority while working in a Division is determined only based on the gradation list maintained in the particular Division. Hence drawing a parity with Circle Gradation List is not acceptable as the same is applicable for promotion to LSG Cadre and not for entry to the PA cadre which is the applicants case.
11. The issue of stepping up of pay of promotee senior at par with a direct recruit junior has been discussed at length by this Tribunal in Annexure R-5 O.A No. 163/2013.
'9. The functional level of a post which was earlier identified on the basis of a pay scale is, after VI th CPC identified with grade pay. Both promotees and direct recruits will therefore be assigned the same grade pay. But pay in the pay band will be determined by the length of service in the lower post for promotees and minimum qualifying service for direct recruits. This method of pay fixation in running pay bands has been drawn up across all services of the Government of India, across all pay bands.. This is not a case of disturbing the historical parity between direct recruits and promoted employees. This is a case of fixation of pay in running pay bands wherein a number of scales of pay have been compressed and absorbed in four pay bands.'
12. What the above judgment failed to discuss is application of FR 22 (1)(a)(i) in the subject case, FR which has guided and directed pay fixation ever since independence when Government of India came into existence. FR 22(1)a(i) reads as follows:
'(a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time- scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or [rupees one hundred only], whichever is more.' [Save in cases of appointment on deputation to an ex cadre post, or to a post on adhoc basis or on direct recruitment basis], the Government servant shall have the option, to be exercised within one month from the date of promotion or appointment, as the case may be, to have the pay fixed under this rule from the date of such promotion or appointment or to have the pay fixed initially at the stage of the time- scale of the new post above the pay in the lower grade or post from which he is promoted on regular basis, which may be refixed in accordance with this rule on the date of accrual of next increment in the scale of the pay of the lower grade or post. In cases where an adhoc promotion is followed by regular appointment without break, the option is admissible as from the date of initial appointment/promotion, to be exercised within one month from the date of such regular appointment.
Provided that where a Government servant is, immediately before his promotion or appointment on regular basis to a higher post, drawing pay at the maximum of the time-scale of the lower post, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the pay notionally arrived at by increasing his pay in respect of the lower post held by him on regular basis by an amount equal to the last increment in the time-scale of the lower post or rupees one hundred, whichever is more.'
13. This is therefore not an issue of a Promoted Postal Assistant and Direct Recruit Postal Assistant performing same duties and vested with same responsibility, but an issue of fixing of pay on promotion as stipulated in above FR. Respondent argues that there is no loss of emolument to a promoted Postal Assistant, in case he had earned three increments in the revised scale of pay in the lower post. Employees who obtained promotion as Postal Assistant from 2008 onwards are getting more pay than Direct Recruit Postal Assistant. The table below demonstrates that the anomaly is limited to those appointed in the period 2006-2007.
Entry pay of 1st increment 2nd increment 3rd increment 4th increment Postman as on July 2006 July 2007 July 2008 July 2009 January, 2006 8460 8720 8990 9270 9540 (8460+260) (8720+270) (8990+280) (9260+280) Entry pay of --- --- Fixation of Fixation of PA pay on pay on promotion promotion after July after July 2008 2009 Rs. 9910 9270+280+ 9540+280+ 400=9950 400=10230
14. The anomaly in the fixation of pay was taken note of by the National Anomaly Committee on 17.07.2012. The above document was also not brought to the notice of the Tribunal in O.A 163/2013.
15. We are not considering the line of promotion of Postal Assistant to LSG, but the line of promotion of LGO's to PA and that too in the Divisional cadre and hence the relevant document is the Divisional Gradation List and not the Circle Gradation List. When this promotion was effected, going by the applicants argument, since there are Postal Assistants in all the Divisions in the State, comparison can be drawn with any PA from any seniority cadre in any Postal Division in the State. Such a comparison with PAs in other Postal Divisions in Kerala is not permissible under the Fundamental Rules which has been governing pay fixation of Government of India employees. Comparison has to be drawn with persons in the same gradation list of entry grade of PA. Applicants have also not challenged the relevant FR governing pay fixation on promotion, which has been governing the field for over half a century.
16. Applicants themselves admit that theirs is an odd case and similarly placed persons from the Postman category, promoted as Postal Assistants subsequent to 2008 July, are drawing higher pay than direct recruit Postal Assistants.
17. Applicants draw our attention to Apex Court order in Randhir Singh v. Union of India 1982 AIR 879 :
'The Petitioner, a driver constable in Delhi Police sought parity in pay with that of drivers of Delhi Administration or to that of RPF. The scale of pay of the driver constable at relevant time was Rs. 210-270 for non matriculates and Rs. 225-308 for matriculates. The scale of pay of RPF drivers were Rs. 260-400. Similar was the pay in secretariat and non- Secretariat drivers in Delhi. The Petitioner was seeking parity in pay with drivers of other Departments of Government. The Hon'ble Supreme Court relying on the doctrine of equal pay for equal work directed the establishment to grant them atleast the pay applicable to the drivers in RPF. The only objection raised by the establishment is that the drivers of police force and other drivers are belonging to different departments, therefore principle of equal pay for equal work is not applicable. The above contention held not rational by Hon'ble Supreme Court by allowing the prayers for equal pay.'
18. In Bhagwan Dass v. State of Haryana 1987 AIR 2049 : The Petitioners had approached the Hon'ble Supreme Court under Article 32 of Constitution seeking regularisation and parity in pay. There were two schemes for adult education in state of Haryana. One sponsored by State Government and another by Central Government. The Petitioners working under the project of the State Government, though performing same duties and responsibilities of that of Central sponsored scheme, were paid only fixed allowance/honorarium. The Hon'ble Supreme Court rejected in the stand of State Government that equal pay for equal work would not be applicable since Recruitment or Petitioners is different from the mode of recruitment of respondents. The Hon'ble Supreme Court while holding so in para 6 observed that :
'Be that as it may, so long as the petitioners are doing work which is similar to the work performed by respondents 2 to 6 from the standpoint of 'equal work for equal pay' doctrine, the petitioners cannot be discriminated against in regard to pay scales. Whether equal work is put in by a candidate selected by a process where candidates from all parts of the country could have competed or whether they are selected by a process where candidates from only a cluster of a few villages could have completed (competed) is altogether irrelevant and immaterial, for the purposes of the applicability of 'equal work for equal pay' doctrine. A typist doing similar work as another typist cannot be denied equal pay on the ground that the process of selection was different in as much as ultimately the work done is similar and there is no rational ground to refuse equal pay for equal work. It is quite possible that if he had to compete with candidates from all over the country, he might or might not have been selected. It would be easier for him to be selected when the selection is limited to a cluster of few villages. That however is altogether a different matter. It is possible that he might not have been selected at all if he had to compete against candidates from all over the country. But once he is selected, whether he is selected by one process or the other, he cannot be denied equal pay for equal work without violating the said doctrine. This plea raised by the respondent- State must also fail.'
26. In para 8 it was held as follows:
'Having regard to these facts and circumstances we do not think that the respondent-State can be accused of making appointments on a temporary six months basis with any ulterior or oblique motive. In our opinion, therefore, the prayer of the petitioners to absorb them as regular employees on a permanent basis from the date of their initial appointment has no justification. That however does not mean that the Petitioners should be deprived of the legitimate benefits of being fixed in a pay-scale corresponding to the one applicable to Respondents 2 to 6 by treating them as employees who have continued from the date of initial appointment by disregarding the breaks which have been given on account of the peculiar nature of the Scheme. While, therefore, the petitioners cannot claim as a matter of right to be absorbed as permanent and regular employees from the inception, they would be justified in claiming pay on the basis of the length of service computed from the date of their appointment depending on the length of service by disregarding the breaks which have been given for a limited purpose.' Based on the above observations the petitioners were granted parity in pay including arrears of pay.
19. In Jaipal, Niaz Mohammed and Others v. State of Haryana 1988 AIR (SC) 1504 the claim for parity in pay was disputed by the Government by contending the mode of selection between parties is absolutely different. Above contention was rejected by Hon'ble Supreme Court by holding that the difference in mode of selection will not affect the application of the doctrine of 'equal pay for equal work' if both the classes of persons perform similar functions and duties under the same employer.
20. The applicants argue that they are Postal Assistants promoted from the lower category and are seeking parity in pay with that of direct recruits. The direct recruits and promotes are performing same duties and responsibilities. A vacancy occupied by a promoted Postal Assistant will be offered to a direct recruit and vice versa. The Postal Assistant either promoted or directly recruited is a single cadre, though recruited by different provisions of the same Recruitment Rule and therefore discrimination on the basis of nature of recruitment is impermissible as per the dictum laid down by the Hon'ble Supreme Court. The respondent relies on the sanctity of FR 22(1) a (i) as a rational justification for fixing pay on promotion which has ruled the field for half a century and more. This is not a case of pay revision or pay parity of similarly placed persons as argued by applicants. This is a case of pay fixation of persons who are promoted from one post to another and the time tested method detailed in the Fundamental Rules for pay fixation.
21. Entry pay of Postal Assistants who are direct recruits is fixed based on the approval given by Government of India as per the recommendations of the 6th CPC, whereas fixation of pay of an official on promotion to a higher grade is governed by FR 22(1)(a)(1). The concept of minimum entry pay for a direct recruit has been specifically recommended by the 6th CPC vide para 2.2.22 (iv), which has been incorporated in Rule 8 of the CCS (RP) Rules, 2008. It is further submitted that the DOP&T vide O.M No. AB-14017/2/97-Estt. (RR) dated 25.05.1998 has prescribed qualifying service for promotion from one post to another. In the case of new recruits, fixation of pay in the running pay band of the group (viz. A,B or C) to which the post belongs to will be done in the following manner:-
'Initially the fixed qualifying service prescribed in DoP&T O.M dated 25.05.1998 for movement from the first grade in the running band to the grade in which recruitment is being made will be computed. Thereafter, one increment is being made will be computed. Thereafter, one increment for every year of fixed qualifying service prescribed in the aforesaid O.M of DoP&T shall be added to the minimum of the running pay band.
Additionally, grade pay corresponding to the grade in that running pay band shall be paid. Two examples are given below:-
I. Entry Pay of Directly Recruited LDC is Rs. 7730 (Rs. 5830 + 1900). The entry pay is computed as follows:
The minimum qualifying service fixed by DoP&T for promotion of an MTS to LDC cadre is three years and the rate of increment is 3%. Minimum of pay (Band Pay Rs. 5200+GP Rs.1800) : Rs. 7000 Value of three increments (7000*3% = 210*3) : Rs. 630.
Difference in Grade Pay (between MTS & LDC) : Rs. 100
Total (Entry Pay) :Rs. 7730.
II. Entry Pay of a Police Constable is Rs. 8460/- (Rs. 6460+2000) The entry pay is computed as follows:
The minimum qualifying service fixed by DoP&T for promotion as Police Constable is six years and the rate of increment is 3%.
Minimum of pay (Band pay Rs. 5200+GP Rs. 1800) : Rs. 7000
Value of six increments (7000*3%=210*6) : Rs. 1260
Difference in Grade Pay (between MTS & Police Constable : Rs. 200
Total (Entry Pay) : Rs.8460'
22. The 6th CPC has recommended in para 2.2.11 that the pay on promotion from one grade to another is to be fixed by adding 3% of the sum of pay in the pay band and the existing grade pay, rounded off to the next multiple of Rs. 10/- to existing pay in the pay band. The grade pay corresponding to the promotion post will also be added. Thus, this is not a case of disturbing historical parity between direct recruits and promoted employees as averred by the applicants. It is further submitted that it has been observed by the Hon'ble Apex Court that the Pay Commission would be the best judge to evaluate the nature of duties and responsibilities of posts. Apex Court has held that if there is any such determination by a Commission or Committee, the Court should normally accept it as stated in Baidyanath Mukherjee v. Vivekananda Goswami 2000 (2) SLR 315. It has been further held in Union of India v. Tarit Ranjan Das (2003) 11 SCC 658: 2004 SCC (L&S) 160 that the conclusions arrived at by a Pay Commission are not susceptible to judicial review.
23. In view of a specific scale of pay attached to a specific post in the pre-revised V CPC pay structure, a Direct Recruit used to get pay fixed at the minimum of the scale of pay. For example, a Direct Recruit joining as a Postal Assistant in the Postal Department, used to get his pay fixed at the minimum of the pre-revised scale of Rs. 4000/-, scale of pay being Rs. 4000-100-6000 upto 31.12.2005. The immediate lower grade was that of Postman in the pre-revised scale of Rs. 3200-85-4900 (a span of 20 years). Thus, a postman promoted as Postal Assistant after the minimum prescribed service of 3 years would have got his pay fixed under the FR 22(1) (a) (I) and if the pay so arrived was lower than the minimum of scale of pay of Rs. 4000/-, pay would be fixed at the minimum of Rs. 4000/. If the pay in Postman cadre is Rs. 4050/-, he would have got pay fixed at Rs. 4200/- on promotion as Postal Assistant.
In the 5th CPC, both the promotees and the direct recruit employees were getting the minimum pay in the scale of pay of the post to which they were appointed. After implementation of the 6 th CPC, the band pay on promotion for the promotees is fixed according to the length of service they had in the lower post whereas direct recruits are given the entry pay fixed for the post. But both the promotees and direct recruits will get the same grade pay of the posts to which they are appointed. Hence grade pay and not pay in the pay band is what distinguishes one post from the next in a running pay band. Hence the principle of same pay for same work is represented by grant of same grade pay and not fixation of pay in the pay band which is a running band for a number of V CPC pay scales, which have been telescoped into one pay band by VI CPC.
24. We see that the reason Annexure A-4 proceedings of National Anomaly Committee dated 17.07.2012 has not been implemented by the Government so far is because they realised the rationale behind the pay fixation formula as historically followed by FR 22 (1) (a) (i) which they did not wish to disturb and we would also like it to remain so. Applicants have also not challenged it.
25. We uphold that FR 22 (1) (a) (i) rules the field of pay fixation on promotion. The only relief which can be given, to the applicants who are before us, is stepping of the pay of all applicants in the O.As with that of the immediate junior as a special case, irrespective of the fact that such a junior is a direct recruit. This is being done as a special case as such applicants who suffer from the condition as cited in these O.As are few, not to be quoted as a precedent in any other case.
26. The Original Applications are allowed as above. No order as to costs.
(Dated, this the 30th March, 2017.)
(Mrs. P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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