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Chaudhari Rakesh Ekanath Vs. Union of India Through the Secretary, Ministry of Tribal Affairs, Shastri Bhawan, New Delhi and Others - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Principal Bench New Delhi
Decided On
Case NumberOA No.1242 of 2011
Judge
AppellantChaudhari Rakesh Ekanath
RespondentUnion of India Through the Secretary, Ministry of Tribal Affairs, Shastri Bhawan, New Delhi and Others
Excerpt:
a.k. bhardwaj, member (j) : the applicant, posted as private secretary with member, national commission for scheduled tribes ( for short ncst) in the pay band-2 of rs.9300-34800/- plus rs.4600 grade pay has filed the present 0riginal application seeking issuance of direction to respondents to treat his post (ps) as having historical parity with ps in csss for the purpose of application of notification ( g.s.r. 622 (e) dated 29.08.2008 and to grant him the grade pay of rs.4800/- as is given to ps in csss cadre. salient grounds taken in the original application are:- (i) the impugned order is violative of the instruction at serial no.1 beneath entry ‘1 office staff in the secretariat in section ii of part-b of the first schedule to the central civil service (revised pay) rules, 2008.....
Judgment:

A.K. Bhardwaj, Member (J) :

The applicant, posted as Private Secretary with Member, National Commission for Scheduled Tribes ( for short NCST) in the Pay Band-2 of Rs.9300-34800/- plus Rs.4600 grade pay has filed the present 0riginal Application seeking issuance of direction to respondents to treat his post (PS) as having historical parity with PS in CSSS for the purpose of application of Notification ( G.S.R. 622 (E) dated 29.08.2008 and to grant him the grade pay of Rs.4800/- as is given to PS in CSSS cadre. Salient grounds taken in the Original Application are:-

(i) The impugned order is violative of the instruction at serial no.1 beneath entry ‘1 office staff in the secretariat in Section II of part-B of the First Schedule to the Central Civil Service (Revised Pay) Rules, 2008 notified on 29 August 2008.

(ii) The post of Private Secretary to Member ST Commission has historical parity with CSSS.

(iii) In terms of Rule of procedure notified at the time of formation of ST Commission, all rules, regulation and orders issued by the Central Government, applicable in the Ministries/Department would also apply to Commission.

(iv) In allowing the grade pay of Rs.4800/- to Private Secretary to Joint Secretary in ST Commission and grade pay of Rs.4600/- to Private Secretary to Member of said Commission, the respondents violated Articles 14 and 16 of the Constitution of India.

(v) The fixation of grade pay of applicant at Rs.4600/- at par with that of Personal Assistant in ST Commission, i.e. a group ‘B non-gazetted post has led to skewed and anomalous situation.

(vi). The post of Private Secretary to Member in the ST Commission formed part of the sanctioned establishment of erstwhile National Commission for Scheduled Caste and Scheduled Tribe.

2. In counter reply filed on behalf of respondent No.2, it has been explained that Rs.4600 has been fixed as grade pay vide office order No.16/2/NCST/2007-Admn dated 28.04.2010 in terms of Ministry of Finance (Department of Expenditure) OM No.111/2008-IC dated 13-12-2009 (Annexure AR-2), there is no parity in the mode of recruitment of PS in National Commission for Scheduled Tribe and CSSS and the up-gradation of grade pay/pay scale of PS/APS in NCST was not approved by Integrated Finance Department (IFD). As is mentioned in para 8 of the said reply, the posts of APS to Chairperson/Vice Chairperson and PS to Member are not included in the Central Secretariat Stenographer Service (CSSS) and the said posts are outside the Secretariat, thus the pay scale applicable for Secretariat staff should not be extended to the staff outside the Secretariat. The various grounds mentioned in para 8 of the reply filed on behalf of respondents for denial of pay parity to applicant with Private Secretary in CSSS read as under:-

The posts of APS to Chairperson/Vice-Chairperson and PS to Member are not included in the Central Secretariat Stenographer Service (CSSS). Therefore, these posts are outside the Secretariat. Sixth Central Pay Commission has recommended separate Pay Scales for the posts existing in the Secretariat and the posts existing outside Secretariat. The pay scale applicable for Secretariat Staff may not be extended to the staff outside the Secretariat. No historical parity exists between the PS of NCST vis-à-vis PSs of CSSS. The historical parity may not be established only on the basis of similarity in pay scales but it also depends on various other factors, viz, status of the organizations, hierarchical structure, mode of recruitment, nature of duties and responsibilities, etc.

(ii) Department of Personnel and Trainings consolidated instructions regarding personal staff of Ministers/Deputy Ministers/Parliamentary Secretaries vide OM No. 8/3/92-CS.II dated 14th January, 1994 provides that- ‘Norms laid down for entitlement of personal staff by the department in this and other office Memoranda are not applicable in the case of functionaries having status of a Minister but who are members of Council of Ministries. Their entitlement depends on the actual workload, which may not be identical with those of the members of Union Council of Ministers of the corresponding rank. Further, in the instant case, the posts of APS and PS were created for the posts of Chairperson/Vice-Chairperson and Members of NCSTs, i.e. functionaries having the status of Minister but are not members of Council of Ministers. Therefore, the posts of APS/PS of NCST may not be granted the Grade Pay of Rs.4800/- in terms of the DOPandTs O.M.No.8/30/3010-CS(II) (c ) dated 19.08.2010.

(iii) The order dated 22.12.2010 of NCSC regarding the grant of the revised pay structure of PB-2 with Grade Pay of |Rsa.4800/- to the posts of PS to Chairperson/Vice Chairperson/Member of NCSC does not indicate that it has been issued with the approval of Department of Expenditure, Ministry of Finance.

(iv) As per Department of Expenditures OM dated 13.11.2009, the posts in the pre-revised pay scale of Rs.6500-10500/- have been granted the revised pay structure of PB-2 with Grade Pay of Rs.4600/-. The posts of APS/PS in NCST were in the pre-revised pay scale of Rs.6500-10,500. Therefore, the pay of these posts may only be regulated in terms of Department of Expenditures OM dated 13.11.2009. A copy of the same is annexed-V.”

In the reply filed on behalf of respondent No.2, it is pleaded that pay of the applicant has been regulated in terms of OM dated 13.11.2009 issued by the Ministry of Finance (Department of Expenditure) (AnnexureV to counter reply filed on behalf of respondent No.1). It is also the stand taken by respondent No.2 that its proposal forwarded to the Ministry of Tribal Affairs vide U.O.No.16/2/NCST/2007-Admn dated 19.12.2008 to obtain the approval of Ministry of Finance (Department of Expenditure) for up-gradation of the posts of PS to Members/APS to Chairperson/APS to Vice-Chairperson in the pay scale of Rs.7500-12000/- w.e.f. 1.01.2006 could not find favour with the Ministry of Finance. In sum and substance, both the respondents have taken a stand that the post of Private Secretary in NCST is not considered at par with Private Secretary in CSSS cadre, for the simple reason that the said Commission is neither a participating office of CSS nor an organization which has a historical parity with CSS/CSSS.

3. We have heard the counsel appearing for parties and perused the record. As can be delineated from the reply filed on behalf of respondent No.1, the applicant was appointed as PS to Member of NCST on co-terminus basis from time to time, lastly w.e.f. 26.11.2010 in Pay Band-2 (Rs.9300-34800 + Grade Pay of Rs.4600). One post each of APS to Chairperson and Vice Chairperson and three posts of Private Secretary to Members in the pre-revised scale of pay Rs.6500-10500 were sanctioned for the Commission by Ministry of Tribal Affairs vide Office Order No. 17014/12/24-TDR dated 19.4.2004. The Chairperson/Vice Chairperson of the Commission are conferred with the status of Union Cabinet Minister and Minister of State respectively while the Members of the Commission are of the status of the Secretary to Government of India and their tenure is for a period of three years. The appointment of APS/PS (ibid) in the Commission is made on co-terminus basis collateral with the tenure of Chairperson/Vice chairperson/Members. Consequent upon the implementation of the report of Sixth CPC vide Notification dated 29.08.2008 issued by the Department of Expenditure ( Ministry of Finance), the post of PS and equivalent in CSSS were upgraded from the pay scale of Rs.6500-10,500 to Rs.7500-12000 (Pay Band-2 of Rs.9300-34800) with grade pay of Rs.4800/- w.e.f. 1.01.2006. In the starred footnote below Section 2 of Para B of said G.S.R. 622 (E) dated 29.08.2008, it is provided that the upgraded pay scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS, i.e. AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. For easy reference, Section II of Part-B of GSR 622 (E) dated 29.08.2008 along with footnote is extracted hereinbelow:-

“(i). The revised pay structure mentioned in Column (5) and (6) of this part of the Notification for the posts mentioned in Column (2) have been approved by the Government. The initial fixation as on 1.1.2006 will be done in accordance with Note 2 below Rule 7 of this Notification.

(ii). On account of merger of pre-revised pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10,500, some posts which presently constitute feeder and promotion grades will come to lie in an identical grade. The specific recommendations about some categories of these posts made by the Pay Commission are included Section II of Part B. As regards other posts, the posts in these three scales should be merged. In case it is not feasible to merge the posts in these pay scales on functional considerations, the posts in the scale of Rs.500-8000 and Rs.5500-9000 should be merged, with the post in the scale of Rs.6500-10500 being upgraded to the next higher grade in the pay band PB-2, i.e. to the grade pay of Rs.4600 corresponding to the pre-revised pay scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.6450-11500.

(iii). Posts in the scale of Rs.6500-10500 carrying minimum qualification of either Degree in Engineering or a Degree in Law should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.

(iv). Posts of scientific staff in the scale of Rs.6500-10500 carrying minimum qualification of engineering degree or a post-graduate degree should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.

(v) Upgradation as in (ii) above may be done in consultation with Department of Expenditure, Ministry of Finance. Regarding (iii) and (iv) above, upgradation may be done by the Ministries concerned in consultation with their Integrated Finance.

Section II

( In Rupees)

Sl.No. Post Present scale Revised

pay scale Corresponding Pay Band

and Grade Pay

Pay Grade

Band Pay Para No. of the Report

1. 2. 3. 4. 5. 6 7

OFFICE STAFF IN THESECRETARIAT*

1.

Section Officer/

PS/equivalent

6500-10500

7500-12000

8000-13500

(On completion of 4 years)

PB-2 4800

PB-3 5400

(On completion of 4 years)

3.1.9

(modified by Govt.)

*This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. would therefore be covered.”

As is noted hereinabove, on the one hand, the applicant has taken a stand that the National Commission for Scheduled Tribe has historical parity with CSS/CSSS, while on the other hand he has sought a declaration to this effect. Thus, the applicant himself is not certain about his status. In view of the pleadings and material available on record, following proposition arises to be determined by us:

Whether the NCST can be considered as an organization having historical parity with CSS/CSSS and PS to Member of said Commission can be treated at par with PS in CSSS in the matter of pay scale.

Whether the denial of pay scale of Rs.7500-12000 (revised to PB-2 of Rs.9300-34800/- with a Grade Pay of Rs.4800/-) to applicant is violative of Articles 14 and 16 of the Constitution of India.

Apparently the NCST came into existence only w.e.f. 19.02.2004, while the CSSS has a long history. The entry level for CSSS is grade ‘D corresponding to junior grade in subordinate/attached offices. Albeit the 2nd Pay Commission itself removed the pay disparity between junior grade in subordinate/ attached offices and grade ‘D stenographer in Central Secretariat Services, but in higher grade, the said Commission felt that the pay difference should remain. The consideration which weighed with the 2nd Pay Commission in retaining the pay differential at higher level was that Stenographers in Central Secretariat were recruited through All India Competitive Examination conducted by UPSC, whereas in the case of non-secretarial staff, the appointment was done invariably, inter alia, through local recruitment by Staff Selection Commission and that the Stenographers in Central Secretariat, attached to Ministers and Secretaries had more onerous duties and responsibilities than those attached to Heads of offices in non-Secretariat offices. The 3rd Pay Commission also broadly endorsed these views. Meanwhile certain improvements were also made in the promotional prospects in subordinate/attached offices with the result that just prior to the recommendations of the 4th Pay Commission effective from 1.1.1986, the position was as under:-

“C. Secretariat Subordinate/attached offices

Scale Scale Rs

(i) Steno. Gr. D 330-560 i) Steno. Jr. Grade 330-560

(ii) Steno Gr.C 425-800 ii) Steno Sr.Grade 425-640

(Non-functional)

(iii) Steno Gr.B.650-1040 iii) Steno Sr.Gr.425-700

(iv) Steno.Gr.A 650-1200 iv) P.A. 550-900”

Stenographers in subordinate/attached offices of Govt. of India kept pressing their demand for parity in pay scales with their counterparts in Central Secretariat. The matter was raised in J.C.M. and in view of the disagreement, it was referred to a Board of Arbitration on 4.8.1986. The Board of Arbitration took note of the stands of either side. When the said Board was still considering the issue, 4th Pay Commission recommendations also became available whereby the level of Stenographer Grade ‘D in Central Secretariat Stenographer Service corresponding to Stenographer Junior Grade in non-Secretariat organization was maintained in the common pay scale of Rs.1200-2040 but at the next level of Stenographer ‘C in Central Secretariat corresponding to Stenographer Grade II in non Secretariat organizations, a different pay scale was recommended in as much as the Stenographer grade ‘C was kept in the pay scale of Rs.1400-2600 while the stenographer grade II in non Secretariat Organization was kept in the pay scale of Rs.1400-2300. The said pay scale was accepted by the Government w.e.f. 1.1.1986. The Board of Arbitration announced its award on 18.8.1989 in terms of which Stenographer in subordinate offices in the existing scale of pay Rs.1400-2300 were directed to be placed in the pay scale of Rs.1400-2600. All other claims of staff side were rejected. As a result, Ministry of Finance (Department of Expenditure) issued OM dated 4.5.1990 revising the pay scale of Stenographer Grade-II in subordinate offices of Government of India from Rs.1400-2300 to Rs.1400-2600 w.e.f. 1.1.1986. Subsequently, pursuant to an order dated 23.05.89 passed in OA 1538/1987 (1991) 16 ATC 891), Government of India issued OM dated 31.07.1990 revising the scale of Rs.1400-2600 to Rs.1640-2900 in respect of Stenographers Grade ‘C of CSSS w.e.f. 1.1.1986 extending the said pay scale to Stenographers in other organizations like Ministry of External Affairs which are not participating in CSS/CSSS but where the posts are in comparable grades with same classification and pay scales, and the method of recruitment through open competitive examination is also the same. A large number of Assistants and Stenographers employed in subordinate and attached offices filed OA Nos 1901/1999, 2135/1997, 828/1997, 112/1997 and 117/1997 seeking benefit of OM dated 31.07.1990. Since the different Benches of this Tribunal had passed conflicting orders on the issue of admissibility of the benefit of said OM to Assistants/Stenographers in attached and subordinate offices, the issue was referred to a larger Bench (Five Members Bench of this Tribunal). In Writ Petition No. 5019/1982 filed by Federation of All India Customs and Central Excise Stenographers (recognized) and others Vs. Union of India and Ors (AIR 1988 SC 1291), Honble Supreme Court delivered detailed judgment on 5.5.1988, taking the view that as a general statement, it is correct to say that the basic nature of stenographers work remains by and large the same whether he is working with an officer in the Secretariat or with an officer in the subordinate office but the size of a stenographers job is very much dependent upon the nature of work entrusted to the officer with whom he is attached and it would not be correct to go merely by the status of the officer and disregard the functional requirements. In the said case, Honble Supreme Court further viewed that by the very nature of Secretariat working, the volume of dictation and typing work can be expected to be heavier than in a subordinate office. Paras 5 to 11 of the judgment read as under:-

“5. This petition has been disposed of on the basis of the position prevailing prior to the report of the Fourth Pay Commission and its acceptance or implementation. The respondents on the other hand deny that there is any discrimination, differentiation without basis. The respondents by their affidavit filed by one Shri S. P. Kundu, Under Secretary to the Government of India, Ministry of Finance assert that the Secretariat of the Ministries/ Departments of the Government of India together constitute Headquarters Organisation. In the administrative hierarchy of the Central Government, the Secretariat occupy according to respondents, a key position and the main role of the Secretariat is to help the Government in the tasks of formulation of policies, to prepare programmes in order to translate these policies into co-ordinated action and to ensure the effective execution of Government policies through periodical review. The Secretariat also helps Ministers to discharge their accountability to Parliament including the various Parliamentary Committees. According to the respondents detailed execution of Government's policies specially in the field is left to the agencies outside the Secretariat which are called attached or subordinate offices of the Ministries, but they are always subject to supervision by the Secretariat. The respondents state that to man the various stenographic posts in the Headquarters, the Government constituted the Central Secretariat Stenographers Service (CSSS) which also caters to the needs of such posts in several attached offices which are known as participating offices. But none of the attached offices, assert the respondents, of the Department of Revenue are participating offices. Therefore, keeping in view the importance and the nature and the type of the work performed in the Ministries/ Departments of the Government of India vis-à-vis those in the attached and subordinate offices and consequently the nature of stenographic assistance required, according to the respondents, the Third Pay Commission recommended different scales of pay for Stenographers in CSSS and those in the non-participating attached and subordinate offices. The respondents in this connection have drawn our attention to the Report of the Third Pay Commission in recommending different and lower scales of pay for the stenographers of the non-participating attached and subordinate offices in comparison with those in the Central Secretariat as follows :

"As a general statement, it is correct to say that the basic nature of a stenographer's work remains by and large the same whether he is working with an officer in the Secretariat or with an officer in the subordinate office. We feel, however, that the position needs to be examined a little more critically because, the size of a stenographer's job is very much dependent upon the nature of the work entrusted to that officer. It would not be correct therefore to go merely by status in these matters and disregard the functional requirements. By the very nature of Secretariat working the volume of dictation and typing work can be expected to be heavier than in a subordinate office. Also the requirement of secrecy even in the civil offices of the Secretariat can be very stringent. Considering the differences in the hierarchical structure and in the type of work transacted in the Secretariat and in the subordinate offices, we are not in favour of adopting a uniform pattern. Once the functional requirements are seen to be different for the Secretariat and the subordinate office, it will not be worthwhile to aim for absolute parity in the pay scale of Stenographers working on the two sides."

6. What was emphasised before us was that the difference in the functional requirements of the work done was one of the points. The respondents say that in devising any scales of various posts/categories inter alia, the degree of skill, experience involved, training required, responsibility taken, strain, fatigue, risk and confidentiality undertaken, mental and physical requirements are factors to be borne in mind. It has been emphasised by the respondents that though the duties and works are identical between the petitioners and their counterparts attached to the Secretaries in the Secretariat, their functions are not identical with regard to their duties and responsibilities. The respondents state that the stenographers attached with the officers in the Secretariat formed a distinguishable class as they have to assist the officers in the discharge of their duties and high responsibilities which according to the respondents are of a much higher nature than in the attached and subordinate offices. According to the respondents the Joint Secretaries and Directors in the Central Secretariat performed functions and duties of higher responsibilities than those performed by the Heads of Departments although they are borne on identical scales of pay. It is in this background of the facts that the claims of the petitioners have to be judged.

7. Equal pay for equal work "is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value Judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.

8. We may briefly note the principles evolved by this Court in this respect in the backdrop of varied sets of facts. Differentiation in implementing the award or the recommendations of Pay Commission Without rational basis may amount to discrimination. In Purshottam Lal v. Union of India, AIR 1973 SC 1088, it was held that implementation of the revised pay scale in a particular category of servants from a date later than that recommended by the Pay Commission and thus non-implementation of its report only in respect of those persons amounts to violation of Articles 14 and 16 of the Constitution, the Constitution Bench held, in Laljee Dubey v. Union of India, (1974) 2 SCR 249 : (AIR 1974 SC 252) this principle was reiterated again. This Court in Randhir Singh v. Union of India, (1982) 3 SCR 298 : (AIR 1982 SC 879) had to deal with the case of a driver constable in the Delhi Police Force under the Delhi Administration. The scale of pay in the Delhi Police Force was for non-matriculate drivers Rs. 210-270 and for matriculate drivers Rs. 225-308. The scale of pay of a driver in the Railway Protection Force was Rs. 260-400. The scale of pay of drivers in the non-Secretariat offices in Delhi was Rs. 260-6-326-EB-8-350, while that of Secretariat offices in Delhi was Rs. 260-6-290-EB-6-326-8-366-EB-8-8-8-390-10-400. The scale of pay of drivers in the office of the Language Commission was Rs. 260-300 while the drivers of heavy vehicles in the Fire Brigade and the Department of Light House was Rs. 330-480. The petitioner and other driver constables made a representation to the authorities that their case was omitted to be considered separately by the Third Pay Commission and that their pay scales should be the same as the drivers of heavy vehicles in other departments. As their claims for better scales of pay did not meet with success, the said application was filed by the petitioner for the issue of a writ under Art. 32 of the Constitution. It was allowed by the Court. Chinnappa Reddy, J. speaking for a Bench of three learned Judges of this Court reiterated the following principles:

"(a) 'Equal pay for equal work' is not a mere demagogic slogan but a constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights (under Article 32 of the Constitution of India).

(b) The stand (of the Government of India) that the circumstance that persons belong to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers, duties and responsibilities, is unacceptable and untenable.

(c) While equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for the Courts, where all things are equal i.e. where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.

(d) The principle of equal pay for equal work is not an abstract doctrine when applied to Government servants performing similar functions and having identical powers, duties and responsibilities.

(e) As matter of interpretation, the Directive Principles, e.g. Article 39(d) of the Constitution, have to be and have been read into the Fundamental Rights e.g. Articles 14 and 16 of the Constitution. So read, the principle of equal pay for equal work, though not expressly declared by our Constitution to be a fundamental right, is a constitutional goal. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), the principle of 'equal pay for equal work' is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer."

9. The Court further expressed the view that on the aforesaid interpretation in the facts of that case, it was proper to direct the Central Government to fix pay scales on par for persons doing identical work under the same employer. It is, however, to be borne in mind what has been emphasised by the respondents in the instant case on this aspect. That case related to the drivers who had been doing physical work; in the case of stenographers and personal assistants, there is an element of faith, reliability and responsibility and the functional responsibilities and the requirements of persons doing same amount of physical work may be different in some cases depending upon the officers with whom the stenographers and personal assistants are attached. On behalf of the petitioners, it is emphasized that Heads of Departments who are in the senior Administrative Grade- Level I (Rs. 2500-2750) which is equivalent to the pay scale of the Joint Secretaries in the Ministries and their nature of work is virtually the same. They have also to deal with sensitive matters. The basic principles on which differentiation would not amount to discrimination, violative of either Article 14 or Article 16(l) of the Constitution are well settled. Article 14 of the Constitution strikes at the arbitrariness in State action and ensures fairness and equality of treatment. It is attracted where equals are treated differently without any reasonable basis. The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws must be applied equally and there should be no discrimination between one person and another if as regards the subject-matter of either administrative action or of legislation, their position is substantially the same. Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation or administrative mandate. The classification must, however, be founded on an intelligible basis which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus with the object to be achieved by the differentiation made in the statute or order in question. In other words, there ought to be causal connection between the basis of classification and the object of the classification. See in this connection the observations of the Constitution Bench of this Court in the case of D. S. Nakara v. Union of India, ( 1983) 2 SCR-165: AIR 1983 SC 130). See also P. K. Ramachandra Iyer v. Union of India, (1984) 2 SCR 200: (AIR 1984 SC 541), where this Court at page 226 of the Report reiterated that the principle of 'equal pay for equal work' is deducible from those Articles 14 and 16 in the light of the Preamble and Article 39(d) of the Constitution and might be applied properly in the cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer. In Delhi Veterinary Association v. Union of India, (1948) 3 SCR 429: (AIR 1984 SC 1221), which was dealing with Veterinary Assistant Surgeons working in the Delhi Administration, it was observed dismissing the writ petition that the question of the fixation of pay scale for Veterinary Assistant Surgeons should be left to be decided by the Government on the basis of the recommendation of the Fourth Pay Commission. The question of discrimination cannot be decided in isolation. This Court reiterated that in addition to the principle of 'equal pay for equal work', the pay structure of the employees of the Government should reflect many other social values. This Court also emphasized the need for evolution and implementation of a scientific national policy of incomes, wages and prices. In P. Savita v. Union of India, (1985) 1 Suppl SCR 101 : (AIR 1985 SC 1124) this Court was dealing with Senior Draftsmen doing the same work and discharging the similar functions and duties. They were classified" into two groups, on the basis of seniority with two different pay scales. The question was whether it was discriminatory. It was held that it was. This Court reiterated that a group of draftsmen entitled to higher scale of pay was not selected by any process nor is it based on any merit-cum-seniority basis, but is based only on seniority-cum-fitness. Moreover, it was found that the senior draftsmen divided into two groups were in the same department doing identical and same work. It was not a case of different grades created on the ground of higher qualification either academic or otherwise or an entitlement by any other criteria. Thus the classification between the two groups of senior draftsmen was without any basis. In view of the total absence of any plea in that case on the side of the respondents that the Senior Draftmen who were placed in the advantageous group do not perform work and duties more onerous or different from the work performed by the appellants group in that case, it was held that this grouping violated Article 14 of the Constitution. It reiterated that the principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if quality is made criterion for differentiation. See also Surinder Singh v. Engineer-in-Chief, C.P.W.D. (1986) 1 SCC 639: (AIR 1986 SC 584). This Court in a different context had to decide this question in Frank Anthony Public School Employees' Association v. Union of India, (1986) 4 SCC 707: (AIR 1987 SC 311). It was held that there cannot be discrimination in pay and other conditions of service of school teachers merely on the basis of aided and unaided minority schools.

10. As is evident, the facts of the instant case are entirely different. Here the differentiation is (sic) sought to be justified on the similarity of the functional work but on the dissimilarity of the responsibility, confidentiality and the relationship with public etc. In Dhirendra Chamoli v. State of U. P. (1986) 1 SCC 637, this Court was concerned with the casual workers on daily wage basis engaged by the Government in different Nehru Yuvak Kendras in the country performing the same duties as performed by the regular Class IV employees against the sanctioned strength. The claim was allowed with certain directions on the basis of the facts found. See in this connection Union of India v. R. G. Kashikar, AIR 1986 SC 431. In Writ Petitions (Civil) Nos. 13097-13176 of 1984, M. P. Singh v. Union of India (1987) 1 JT 146 : (AIR 1987 SC 485), this Court on the facts of that case found that among the employees of the Central Bureau of Investigation, there are two classes of officials deputationists and non-deputationists amongst Sub-Inspectors, Inspectors and Deputy Superintendents of Police. There has been discrimination among the two groups with regard to payment of special pay. Special pay related to arduous nature of duties to be performed. Whether they belong to the category of deputationists or non-deputationists - payment of different rates of special pay, it was held in the facts of the case, did not pass the test of classification. This Court reiterated that it was well settled that in order to pass the test of permissible classification of persons belonging to the same class into groups for purposes of differential treatment two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes persons who were grouped together from others left out of the group and that differentia must have rational relation to the objects sought to be achieved by the law which brings about discrimination between the two groups. In Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa (SLP (Civil) No. 1265/87 decided on March 26, 1987) (reported in AIR 1987 SC 1281), the question was the different treatment between male and female stenographers. But there differentiation was based on the ground of sex. It was struck down. It will clearly be violative of Article 14 and Article 16 of the Constitution.

11. In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less - it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or in fact. In the light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs.”

Following the view taken by Honble Supreme Court, the aforementioned Full Bench of this Tribunal passed order dated 15.03.2001 ( ATFBJ 2002-03 page 260), taking the view that the Stenographers of subordinate or attached offices of Government of India are not entitled to the pay scale of Rs.1640-2900/- admissible to Stenographers working in Central Secretariat Service. Para 32 of Full Bench judgment reads as under:-

“While there is no doubt that employees similarly placed are entitled to similar treatment and no doubt some Stenographers Grade II/Assistants in non-Secretariat offices have been extended the benefits of O.M.dated 31.7.90, we notice that the grant of the higher scale of Rs.5500-9000 to applicants w.e.f. 1.1.96 which is the scale admissible in the promotional posts of Stenographers Grade I would amount to treating dissimilar persons similarly which would be directly violative of Articles 14 and 16 of the Constitution. It is for this very reason that the Honble Supreme Court in Union of India Vs. P.V.Hariharan and Others 1977 SCC (LandS) 838 has observed as follows:

“Quite often the Administrative Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realize that interfering with the prescribed pay scales is a serious matter. The Pay Commission which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue.”

Thus, despite there being collateral grades of Stenographers in Central Secretariat and subordinate/ attached offices (ibid), Honble Supreme Court as well as a Full Bench of this Tribunal could take a view that the Stenographers in subordinate offices are not comparable with those in CSSS. Besides, in terms of OM dated 13.11.2009 issued by Ministry of Finance (Annexure-V to the reply filed on behalf of respondent No. 1), it is clearly provided that the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200 in the pay band 2 were to be granted grade pay of Rs.4600 w.e.f. 1.1.2006. Para 3 of the order reads as under:-

“Consequent upon the Notification of CCS (RP) Rules 2008, Department of Expenditure has received a large number of reference fro administrative ministries/departments proposing upgradations of the posts which were in the pre-revised scale of Rs.6500-10500 as on 1.1.2006 by granting them grade pay of Rs.4600 in the pay band PB-2. The matter has been considered and it has now been decided that the posts which were in the pre-revised scaled of Rs.6500-10500 as on 1.1.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200/- in the pay band PB-2, will be granted grade pay of Rs.4600 in the pay band PB-2 corresponding to the pre-revised scale of Rs.7450-11500 w.e.f.1.1.2006. Further, in terms of the aforementioned provisions of CCS (RP) Rules 2008, in case a post already existed in the pre-revised scale of Rs. 7450-11500, the posts being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500/-.”

In CCS (RP) Rules, 2008 issued by G.S.R.622 (E) dated 29.08.2008, it is specifically provided that the revised pay scale of 7500-12000 w.e.f. 1.1.2006 was to be made available only to PS in CSSS and in such of those organization/services which have had a historical parity with CSS/CSSS, i.e. services of AFHQSS/AFHQSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. National Commission for Scheduled Tribe came into existence w.e.f. 2004 and cannot be said to have historical parity with CSSS in terms of the said Rules.

4. As far as the judgment of Honble Supreme Court in Civil Appeal No. 365/2007 (Union of India and Ors. Vs. Jagdish Pandey and Ors) (2010) 7 SCC 689), relied upon by learned counsel for applicant is concerned, in the said case, Honble Supreme Court has upheld the order of a Division Bench of Honble Calcutta High Court dated 2.03.2005 passed by it dismissing the Writ Petition filed by UOI against the order of Calcutta Bench of this Tribunal dated 18.01.2002. In the said case, the respondents claimed running allowance @ 120 k.m. per day while on duty in terms of para 3.12 of the New Running Allowance Rules. Writ Petition filed by them before Calcutta High Court was allowed resulting in payment of the allowance as aforementioned to them. However, subsequently Eastern Railways passed order dated 22.02.2001 taking the view that Tower Wagon Drivers were granted higher pay scales inadvertently and directed withdrawal of said pay scale as well as recovery of the excess amount paid to them. Questioning the correctness of said order, the Tower Wagon Drivers approached the Tribunal taking the plea that the duty and functions of TWD were similar to those of goods drivers and the posts are treated inter-changeable by the department, thus the pay scale granted to them at par with Goods Driver was justified. It was in these facts that the Tribunal viewed that TWD were treated to be equivalent to driver of goods train and were to be given same pay scale. The said judgment has no application to the facts of the present case for the simple reason that CSSS is an organized service and the recruitment to various grades in said service is as per RRs and procedure entirely different from one prescribed for appointment of PS to Member in NCST, i.e. on co-terminus basis. In the judgment relied upon by applicant (ibid), Honble Supreme Court has not dealt with the issue of historical parity of any service/ organization with CSSS. In the case of S.R.Dheer and Another Vs. UOI and Others (OA 164/2009 decided on 19.02.2009), this Tribunal found the historical parity between CSS and PS cadre in CAT established as follows:-

“7. Applicants are Private Secretaries (PSs) and Section Officers (SOs) working in the Principal Bench of the Central Administrative Tribunal (CAT). The Tribunal has come into being in the year 1985 when there was no distinction or difference in pay scales with their counterparts in the CSS/CSSS. The hierarchy of Central Secretariat and CAT is explained below in a tabular form:-

S.No. Name of Post Group/Classification 3rd CPC scale of pay 4th CPC scale of pay 5th CPC scale of pay

1. Stenographer Grade D/ UDC Group C (Non-gazetted)/ General Central Service (Ministerial) Non-gazetted 330-560

1200-2040 4000-6000

2. Stenographer Grade C/Assistant Group B (Non-gazetted)/ General Central Service (Ministerial) Non-gazetted 425-800

1400-2600 *1640-2900

5500-9000

3. Private Secretary/

Section Officer Group B (Gazetted)/ General Central Service (Ministerial) gazetted

650-1200 2000-3500 6500-10500

*8000-13000/-( On completion of four years)

4.

Principal Private Secretary/Under Secretary Group A (Gazetted)/General Central Service (Ministerial) 10000-15200

B) Central Administrative Service

S.No. Name of Post Group/Classification 3rd CPC scale of pay 4th CPC scale of pay 5th CPC scale of pay

(1) (2) (3) (4) (5) (6)

1. Stenographer Grade D/ UDC Group C (Non-gazetted)/ General Central Service (Ministerial) Non-gazetted 330-560

1200-2040 4000-6000

2. Stenographer Grade C/Assistant Group B (Non-gazetted)/ General Central Service (Ministerial) Non-gazetted 425-800

1400-2600 *1640-2900

5500-9000

3. Private Secretary/

Section Officer Group B (Gazetted)/ General Central Service (Ministerial) gazetted

650-1200 2000-3500 6500-10500

*8000-13000/-( On completion of four years)

4.

Principal Private Secretary/Deputy Registrar Group A (Gazetted)/General Central Service (Ministerial) 10000-15200

5. As far as the present case is concerned, the PS to Member, ST Commission is not comparable with CSSS. So far as the issue of discrimination and violations of Articles 14 and 16 of the Constitution is concerned, as been held by the Honble Supreme Court in State of Haryana Vs. Haryana Civil Service Secretariat Personal Staff Association (Civil Appeal No. 3518/1997 decided on 10.07.2002) (JT 2002 (5) SC P.189), ordinarily a pay structure is evolved keeping in mind several factors for example, (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. Thus, in order to claim pay parity with PS in CSS, the applicant need to establish similarity of his service with that of PS in CSS/CSSS in respect of all the aforementioned factors. Apparently, none of the said factors are similar in respect of post of the applicant and PS of CSSS. Besides the 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. Paras 9 and 10 of said judgment read as under:-

“9. This Court in the case of Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors., JT 1992 2 SC 27 : 1993 SUPP1 SCC 153 dealing with the question of equation of posts and equation of salaries of government employees, made the following observations: "We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as 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 data 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. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability of the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalization of the pay structure does not throw up anomalies. Ordinarily a pay structure is evolved keeping in mind several factors, e.g. (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational /technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. We have referred to these matters in some detail only to emphasise that 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. It is 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.

10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position and capacity of the state government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the state government is also a relevant factor for consideration by the state government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the state government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational, unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the state government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of employees, one in the state secretariat and the other in the central secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre.”

Also in Union of India Vs. P.K.Dev (JT 2000 (Suppl.2 SC 449), Honble Supreme Court viewed that Court should normally leave the issue of pay parity to the wisdom of administration except in proven cases of hostile discrimination. Para 39 of the judgment reads as under:-

“It is an indisputable fact that the pay scales now claimed by the respondent (P.K.Dey) are those prescribed for the post of Assistant Sub-Inspector. As already noticed above, it is once again a promotional post for a Naik. Acceding to the claim made by the respondent would not merely result in change in the pay scales but may also lead to alternation of the pattern of hierarchy requiring re-orientation and restructuring of the other posts above and below the post of respondent. Added to this, such consequences are likely to be felt in the various other Central Police Establishments as well. All these which are likely to have a chain react ion may require further consideration afresh by expert body like the Pay Commission or the Government itself at an appropriate time in an appropriate manner. Courts should normally leave such matters for the wisdom of administration except the proven cases of hostile discrimination. But in the case on hand, having regard to the facts and circumstances of the case and the position of law stated above, the Division Bench of the High Court was not right in granting the relief itself, straightaway to the respondent, that too, without examining the implications and impact of giving such directions on other cadres. However, we make it clear that the rejection of the claim of the respondent need not be taken as an issue closed once and for all. It is always open to the Government to consider the issue either by making reference to the Pay Commission or itself once again as to the grant of pay scales to the respondent. It is open to the respondent to make further and detailed representation.”

Further in the case of Union of India Vs. Tarit Ranjan Das ( JT 2003(8) SCC 352), Honble Supreme Court viewed as under:-

“6. This Court in Union of India v. Pradip Kumar Dey (2000(8) SCC 580) : 2001(1) SCT 462 (SC) after referring to various decisions dealing with the similar question in para 8 has held thus : (SCC p. 584)

"8. In our considered view, the Division Bench of the High Court was not right and justified in straight away giving direction to grant pay scale to the respondent when there was no material placed before the Court for comparison to order to apply the principle of `equal pay for equal work' between the Radio Operators of CRPF and the Radio Operators working in civil side in the Central Water Commission and the Directorate of Police Wireless. In the absence of material relating to other comparable employees as to the qualifications, method of recruitment, degree of skill, experience involved in performance of job, training required, responsibilities undertaken and other facilities in addition to pay scales, the learned Single Judge was right when he stated in the order that in the absence of such material it would not possible to grant relief to the respondent. No doubt, the Directorate of CRPF made recommendations to the Pay Commission for giving higher pay scales on the basis of which claim is made by the respondent for grant of pay scale. The factual statements contained in the recommendation of a particular department alone cannot be considered per se proof of such things or they cannot by themselves vouch for the correctness of the same. The said recommendation could not be taken as a recommendation made by the Government. Even otherwise a mere recommendation did not confer any right on the respondent to make such a claim for writ of mandamus."

7. Yet, in another decision in State Bank of India v. M.R. Ganesh Babu (2002(4) SCC 556) : 2002(2) SCT 749 (SC) a Bench of three learned Judges of this Court, while dealing with the same principle, in para 16 has expressed that : (SCC p. 563)

"16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities made a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected to an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court."

(Also see State of Haryana and Anr. v. Tilak Raj and Ors. (2003(6) SCC 123) and Orissa University of Agriculture and Technology and Anr. v. Manoj K. Mohannty (2003(5) SCC 188) : 2003(2) SCT 971 (SC)).

8. In this case, the Tribunal and High Court seem to have completely lost sight of the fact that the Fifth Pay Commission specifically considered the question and held that there is no question of any equivalence. The Commission observed as follows :

"46.34. We have given our careful consideration to the suggestions made by Associations representing Stenographers in Offices outside the Secretariat in the light of observations made by the Third CPC. The Commission had observed that as a general statement, it was correct to say that the basis nature of a Stenographer's work remained by and large the same whether he was working with an officer in the Secretariat or with an officer in a subordinate office. The Commission was of the considered view, that the size of the Stenographer's job was very much dependent upon the nature of work entrusted to that officer and that it would not be correct, therefore, to go merely by the status in disregard of the functional requirement. By the very nature of work in the secretariat, the volume of dictation and typing work was expected to be heavier than in a subordinate office, the requirement of secrecy even in civil offices of the secretariat could be very stringent. Considering the differences is the hierarchical structures and in the type of work transacted the Commission was not in favour of adopting a uniform pattern in respect of matter listed in the preceding paragraph. To our mind, the observations of the Third CPC are as relevant today as they were at that point of time and we are not inclined to overlook them totally. In view of the abovementioned distinguishable feature, we do not concede the demand for absolute parity in regard to pay scales between stenographers in officers outside the secretariat and in the secretariat notwithstanding the fact that some petitioner Stenographers Grade II have got other benefit of parity in pay scale through courts. However, pursuing the policy enunciated by the Second CPC that disparity in the pay scale prescribed for stenographers in the Secretariat and the non-secretariat organisations should be reduced as far as possible, we are of the view that Stenographers Grade II should be placed in the existing pay scale of Rs. 1600-2660 instead of Rs. 1400-2300/Rs. 1400-2600."

9. Strangely, the Tribunal in the review petition came to hold that the Commission had not based its conclusion on any data. It is trite law that it is not open for any Court to sit in judgment as on appeal over the conclusion of the Commission. Further the Tribunal and the High Court proceeded as if it was the employer who was to show that there was no equality in the work. On the contrary the person who asserts that there is equality has to prove it. The equality is not based on designation or the nature of work alone. There are several other factors like, responsibilities, reliabilities, experience, confidentially involved, functional need and requirements commensurate with the position in the hierarchy, the qualifications required which are equally relevant.

10. In State of W.B. and Ors. v. Hari Narayan Bhowal and Ors. (1994(4) SCC 78) : 1994(3) SCT 707 (SC), it was observed :

"This Court in the case of Delhi Veterinary Ass. v. Union of India (1984(3) SCC 1) said that in addition to the principle of `equal pay for equal work', the pay structure of the employees of the Government should reflect many other social values. It was said:

"The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level of which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors."

11. In the case of State of U.P. v. J.P. Chaurasia (1989(1) SCC 121) it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts by the Competent Authorities constituted for the purpose and Courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view reiterated in the case of State of M.P. v. Pramod Bhartiya (1993(1) SCC 539) : 1993(1) SCT 138 (SC) by a three-Judge Bench of this Court. In the case of Shyam Babu Verma v. Union of India (1994(2) SCC 521) : 1994(2) SCT 296 (SC) a claim for equal pay by a group of Pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable.”

In view of aforementioned legal and factual position, the plea of applicant of pay parity with PS in CSSS on the principle of ‘equal pay for equal work is declined. Nevertheless, there are certain other factors which need to be considered, i.e. the respondent No. 2 (NCST) had initiated a proposal for grant of Grade Pay of Rs.4800/- to PS clarifying that the post of PS to Member/APS to Chairperson/Vice Chairperson in National Commission for Scheduled Caste and Scheduled Tribe had been in the same pay scale as that of the post of PS in CSSS. The respondent No. 2 also requested the Ministry of Tribal Affairs (respondent No. 1) to obtain the approval of Ministry of Finance for the up-gradation of PS to Member/ APS to Chairperson/Vice Chairperson in National Commission for Scheduled Caste/Scheduled Tribe in the pay scale of Rs.7500-12000 w.e.f. 1.1.1986 (revised to pay band-2 of Rs.9300-34800) with grade pay of Rs.4800/-. By all means, it is again for the administration to examine the claim of applicant for pay parity with PS of Member to National Commission for Scheduled Tribe or the Member of erstwhile National Commission for Scheduled Caste and Scheduled Tribe. The Courts or Tribunal cannot be expected to examine the various factors required to be established before granting equal pay for equal work.

6. In view of aforementioned OA is found to be devoid of merit and is accordingly dismissed. The dismissal of present OA would, however, not stand in the way of respondents in considering giving the same pay scale as is given to PS to Member, National Commission for Scheduled Caste to applicant also. No cost.


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