Central Administrative Tribunal - Delhi
C S Swarup Kumar vs M/O Human Resource Development on 30 May, 2023
1
Court No.5 (item No.19) OA NO.2944 of 2015
Central Administrative Tribunal
Principal Bench
OA No.2944 /2015
Reserved on:16. 05.2023
Pronouncement on: 30 .05. 2023
Hon'ble Mrs. Pratima K.Gupra, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
C.S.Swaroop Kumar
Computer Operator
Office of Navodaya Vidyalaya
Samiti, Hyderabad Region, AP -Applicant.
(Through Advocate: Sh. Ranjit Sharma)
Versus
1. U.O.I. through
The Ministry of HRD
Shastri Bhawan, Delhi.
2. Commissioner
Navodaya Vidyalaya
Samiti
B-15, Institutional Area
Sector 52, Noida U.P. -Respondents
(Through Advocate: Mr. S.Rajappa and Mr. R.
Gowrishankar)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
In the present O.A. filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s);2
Court No.5 (item No.19) OA NO.2944 of 2015 " i) Hold that the respondents; act of not granting the scale of 5500-9000 (pre-revised) and 9300-34,800 with GP 4200 in favour of the Computer Operators is illegal, arbitrary and unconstitutional and that the Computer Operators are entitled to the said pay scale and accordingly direct the respondents to grant the said pay scale to the Computer Operators in Navodaya Vidyalaya Samiti at par with other Departments in the Ministry of H.R.D. Govt. of India w.e.f. implementation of V C.P.C. pay scales in NVS and to disburse the arrears accordingly;
ii) Quash letter/memo dt. 21-10-2010 (Annexure A6 Supra);
AND/OR
ii) Pass such other order/s as maybe deemed fit and proper."
2. This is the second round of litigation. In the first round of litigation, the applicant for redressal of his claim had approached the Hyderabad Bench of the Tribunal and the Tribunal disposed of his case with a direction to the respondents to consider the applicant's claim and decide his pending representation. The same was rejected by them by way of the impugned order dated 21.1.2010 (Annexure A6, page 16 of the O.A.).
3. Learned counsel for the applicant takes us through the history and background of the case. He states that the applicant was getting the pay scale of Rs. 4000-6000 as per the recommendations of the 5th Central Pay Commission (CPC). After the recommendations of the 6th Central Pay Commission (CPC) the applicant has been extended the pay scale of 5200-20200 with Grade Pay 2400 Pay Band-1. The claim of the applicant is that Computer Operators who are working in similar organizations, that is, NCERT, Indira Gandhi National Open University and Maulana Azad National Urdu University, are having the same set of 3 Court No.5 (item No.19) OA NO.2944 of 2015 recruitment rules and are discharging identical duties and have been placed under the same nodal Ministry, that is, the Ministry of Education (erstwhile Ministry of Human Resource Development). He states that the applicant's counterparts in the aforementioned organizations have been extended the pay scale of Rs. 9300-34800/- with Grade Pay of Rs. 4200/-. Accordingly, by virtue of the present O.A., the applicant seeks parity on the grounds of equal pay for equal work.
4. To establish his claim, learned counsel for the applicant draws attention to page 7 and 8 of this O.A. whereby details of various posts have been outlined. He further draws support from the Department of Expenditure O.M. dated 10.08.2016 annexed at page 11 of the rejoinder wherein details of various posts is shown. The relevant extract of the same reads as under:-
Existing Revised
Sl Post Pay Band Grade Pay Level
No. Pay (Matrix)
As per 6th CPC (7th CPC)
12 Data Entry Operator PB-1 (5200- 2400 Level 4
Grade A 20200)
13 Data Entry Operator PB-1 (5200- 2800 Level 5
Grade B 20200)
14 Computer Operator PB-2 (9300- 4200 Level 6
34800)
He further draws strength from the Minutes of the Meeting of the 41st Meeting of Finance Committee (page 6 of the rejoinder). The relevant portion of the same reads as under:-
" Item No. 2 Upgradation of the Post of Computer Operator in NVS 4 Court No.5 (item No.19) OA NO.2944 of 2015 One post of Computer Operator in the scale of pay of Rs.4000-100-6000/- has been sanctioned in NVS Hqrs. and regional offices to look after the computer programmes, system administration etc. The post of Computer Operator is to be filled up on direct recruitment basis from among the candidates possessing the following qualifications:-
Essential:-
1. Degree from a recognized Institution/University
2. Skill in word-processing & data entry with one year Computer Diploma from a recognized Institution.
fvvvv Desirable:-
Familiarity with various software packages.
It is understood that the post of Computer Operator Grade in NCERT and other similar organizations carries the pay scale of Rs.5500-175-9000/- It is evident that in NVS, the post of Computer Operator has been created at a much lower scale as compared to the other Ministries and organizations. In order to retain qualified persons, it is imperative to upgrade the post of Computer Operator in NVS in the pay scale of Rs.5500-175-9000/-.
The Finance Committee is requested to consider & approve the proposal."
5. He goes on to argue that the Executive Committee of the Navodaya Vidyalaya Samiti (NVS) had recommended the case of the applicant and then the approved recommendations were sent to the competent authority for approval. He adds that the committee had opined that the computer operators in NVS were placed in a much lower scale and it was imperative that the said post was upgraded in the relevant scale.
6. Learned counsel for the applicant states that the applicant are performing the same duties as their counterparts in other organisations seeking parity which includes monitoring and website maintenance etc. 5 Court No.5 (item No.19) OA NO.2944 of 2015 He further relies on the following judgments of the Hon'ble Supreme Court:-
1. Jaipal & Others Vs. State of Haryana and Others on 02.06.1988 "The main controversy raised on behalf of the respondents is that the instructors do not perform similar duties as performed by the squad teachers. It was urged that the nature of duties of instructors are quite different than those performed by the squad teachers. The petitioners have stated that the instructors are full time employees they take regular classes of students in the age group of S- 15 years for two and a half hours and they further take classes for adult illiterates in the age group of 15-35 years for one and a half hours. This is not disputed. The petitioners further contended that in addition to four hours teaching work they have to motivate the children and the adults to join the centres for getting free education. They are required to submit survey reports to the department every six months giving details as to how many children in the age group of 5-15 years are not going to the schools and how many adult persons are illiterate in their villages. The petitioners further assert that adult education and nonformal education programme which is implemented by the instructors is similar to social education programme. The instructors as well as squad teachers of social education scheme are appointed by the District Adult Education officer and both these class of persons function under the control and supervision of the Joint Director, Adult Education under the Directorate of Education of the State of Haryana. The duties of instructors as contained in Chapter II of the Informal Education Instructors Guide published by the Haryana Government, Directorate of Education, are specified, a copy of the same has been annexed to the affidavit of Prem Chand one of the petitioners. The duties of the instructors as prescribed therein are as under:
"DUTIES OF THE INSTRUCTOR (A) AS ORGANISER OF THE CENTRE
1. To contact the villagers and their children who can be given education at the centre;
2. To survey the villages to know who are the children who can be brought to the centre for teaching;
3. To tell the villages about the aims and objects of education programme; and (4) To form local co- ordinating bodies. (B) AS A TEACHER
1. To complete the syllabus in time and to create interest in the children by his teaching;
2. The instructor must be aware of multiple class and group teaching systems;
3. He should give examples of village life and to link it with education; and
4. To make cultural activities a part of education. (C) AS ADMISTRATOR OF THE CENTRE
1. To contact such students who are irregular or late comers to the centre and to encourage them/their parents to send their children regularly to the centre;
2. To keep records of the following:
(i) personal details of children and their progress charts;
(ii) Their timely evaluation;
(iii) The details of admission of children from Informal Education Centre (3rd, 4th and 5th class) to formal school;
(iv) Copy of the monthly progress and copies of reports sent to the Supervising and Planning offices and copies of other reports."
The aforesaid publication issued by the Government further states that Haryana is the first State which has integrated the two schemes, namely, Informal Education Programme and Adult Education Programme."
"In view of the above discussion, we hold that the instructors are entitled to the same pay scale as sanctioned to squad teachers. We, accordingly, direct that the petitioners' salary shall be fixed in the same pay scale as that of squad teachers. The pay of each of the petitioners shall be fixed having regard to the length of service with effect from the date of his initial appointment by ignoring the break in service on account of six months fresh appointments. The petitioners will be entitled to increments in the pay scale in accordance with law notwithstanding the break in service that might have taken place.6
Court No.5 (item No.19) OA NO.2944 of 2015 We further direct that these directions shall be implemented with effect from September 1, 1985 as directed by this Court in the case of Bhagwan Das (supra). The petitioners' claim for regularising their services In the department cannot be accepted as admittedlly the project of Adult and Non-formal Education is temporary which is likely to last till 1990. We accordingly allow the writ petitions partly with costs which we quantify at Rs.5,000."
2. Randhir Singh Vs. Union of India & Ors. on 22.06.1982 " It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a Constitutional goal. Art. 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women" as a Directive Principle of State Policy. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Art. 14 of the Constitution enjoins the state not to deny any person equality before the law or the equal protection of the laws and Art. 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the Constitution must mean some thing to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular Governmental policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the takeover of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'To each according to his need', it must atleast mean 'equal pay for equal work'. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g, Section 59 of the Hungarian Labour. Code, para 2 of Section 111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western labour codes too. Under provisions in Section 31 (g. No. 2d) of Book I of the French Code du Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance (vide: International Labour Law by Istvan Szaszy p. 265). The preamble of the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions "involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled". Construing Articles 14 and 16 in the light of the Preamble and Art. 39(d) we are of the view that the principle 'Equal pay for Equal work' is deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do idential work under the same employer.
There cannot be the slightest doubt that the drivers in the Delhi Police Force perform the same functions and duties as other drivers in service of the Delhi Administration and the Central Government. If anything, by reason of their investiture with the 'powers, functions and privileges of a police officer', their duties and responsibilities are more arduous. In answer to the allegation in the petition that the driver-constables of the Delhi Police Force perform no less arduous duties than drivers in other departments, it was admitted by the respondents in their counter that the duties of the driver-constables of the Delhi Police Force were onerous. What then is the reason for giving them a lower scale of pay than others ? There is none. The only answer of the respondents is that the drivers of the Delhi Police Force and the other drivers belong to different departments and that the principle of equal pay for equal work is not a principle which the Courts may recognise and act upon. We have shown that the answer is unsound. The clarification is irrational. We, therefore, allow the Writ Petition and direct the respondents to fix the scale of pay of the petitioner and the drivers-constables of the Delhi Police Force atleast on a par with that of the drivers of the Railway Protection Force. The scale of pay shall be effective from 1st January, 1973, the date from which the recommendations of the Pay Commission were given effect." 7
Court No.5 (item No.19) OA NO.2944 of 2015
7. He sums up his arguments by stating that since the applicant and their counterparts in different organisations/ statutory bodies as referred to above have identical qualifications and are discharging same duties, they cannot be extended lesser/varying pay scales. He adds that NVS is also part of the Ministry of Education (previously Ministry of Human Resource Development) and is fully funded by the Government of India as are the other organizations mentioned previously to which the applicant are seeking parity.
8. Learned counsel for the respondents vehemently opposes the contentions made by the learned counsel for the applicant and submits that the impugned order dated 21.10.2010 clearly stipulates that the reason for non grant of the desired pay scale is that the applicant have been extended the pay scale of Rs. 4000-6000 as per the recommendations of 5th CPC and the pay scale of Rs. 5200-20200 in pursuance of the recommendations of the 6th CPC and the O.M. dated 29.08.2008. One of the OMs has been challenged by the by the applicant in the present O.A. a. He states that the respondents have followed the OM strictly, therefore, the claim of the applicant cannot be sustained. He further draws support from the counter reply (specifically page 20) to support his contentions. He further states that the respondents have standalone process and accordingly, the same has been made computer 8 Court No.5 (item No.19) OA NO.2944 of 2015 operators with desired ability can aspire to the post of PGT Computer Science. While the applicants are seeking parity with other institutions, he states that in IGNOR there is a hierarchy of post and there are data entry operators who manage the affairs of the computers. He goes on to say that even if the qualifications may by same, however, the nature of job requirements of different organizations are different and therefore, the arguments of the applicant are misplaced.
9. With respect to the contention of the applicant, he draws support from the O.M. dated 10.08.2016 (page 11 of the rejoinder) he states that the pay scales have been recommended by the 7th Central Pay Commission and that the same has been extended to purely government organizations and not statutory bodies and that if the government had intended to extend the same across the board, it would have reflected the same in the order itself. Since nothing has been stated, the benefit of the OM cannot be extended to the applicant. He further draws attention to the judgment rendered by the Hon'ble Supreme Court in CA No. 8329/2011 dated 22.02.2023 in the case of Union of India Vs. Indian Navy Civilian Design Officers Association and Anr.(Para 12 and 14). He goes on to argue that the claim of the applicant therein has been dismissed by the Hon'ble Supreme Court. Therefore, this O.A. should also be dismissed with costs. He says that the applicant has not challenged the O.M. under consideration.
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Court No.5 (item No.19) OA NO.2944 of 2015
10. In rejoinder, learned counsel for the applicant draws attention to an order dated 16.02.20210 (Additional Documents) passed by the NVS, the pay scale of the staff nurses has been upgraded on the same analogy to which the applicant is seeking benefit. The same could have been done in the case of the applicant as well as their case was recommended by the 41st Meeting of the Finance. Learned counsel for the applicant further states that the judgment of the Hon'ble Supreme Court referred to by the learned counsel for the respondents is not applicable in this case as the facts and issues involved in that case was with respect to different pay scales in the same organization while in the present case whether the respondents could extend the pay scale of Rs. 4600/-to the applicant arbitrarily ignoring the parity of similarly placed persons in different organizations under the same Ministry.
11. We have gone through the records of the case thoroughly and heard the arguments carefully. The basic issue in the instant OA is that the claim of pay parity of Data Entry Operators (DTO) working in Navodaya Vidyalaya Samiti(NVS) invoking Article 14 and 16 of the Constitution of India to treat equally placed employee in various government organizations and prevent discrimination of Data Entry /Computer Operators in Navodaya Vidyalaya Samiti (NVS) vis-à-vis the Data Entry/ 10 Court No.5 (item No.19) OA NO.2944 of 2015 Computer Operators in similarly placed other organizations under Govt. of India, even under the same Ministry of Education, Govt. of India.
12. The question arises what is the reasonable bounded domain which establish similarly placed employees. The NVS is an Autonomous Organization under the Ministry of Education, Govt. of India. There are several other Autonomous Organizations functioning under the aegis of Ministry of Education. The origin, scope of work, mission objectives and nature of functioning in all these organizations are distinctly different. NCERT, KVS, NVS and Central Universities, AICTE are examples of such distinctly different Autonomous Organizations functioning under the Ministry of Education, Govt. of India. One can not equate the service conditions of similarly nomenclatured employees across all organization. Each organization has its own services Rules for the respective organization. If the intention was to create commonality in service conditions across all these organizations under the Ministry of Education, the same could have been effected by the Ministry as it is the Controlling and Supervisory Authority for all these organizations. Under such circumstances, one cannot take the broad umbrella of all the Autonomous 11 Court No.5 (item No.19) OA NO.2944 of 2015 Origination under the Ministry of Education to derive the conditions of service equality and drive principle of equality of pay for equal work.
12.2. We agree with the contention of the learned counsel for the respondents that the doctrine of "Equal pay for Equal work"
is not an abstract doctrine. As it has been rightly held by the Apex Court in Ajay Rastogi (supra), equal pay must be for equal work of equal value. The learned counsel for the applicant has failed to establish that the Computer Operators in NVS are performing equal work as the Data Entry/ Computer Operators in other Autonomous Organization like AICTE, KVS etc and delivering equal value.
13. In view of the above, the present OA lacks merit and hence it is dismissed. There shall be no order as to costs All pending MAs are also disposed of accordingly.
(Dr. Chhabilendra Roul) (Pratima K Gupta)
Member (A) Member (J)
/mk /