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Shri Arvind Kumar Section Officer Vs. Union of India (Uoi) (Through the - Court Judgment

LegalCrystal Citation
CourtCentral Administrative Tribunal CAT Delhi
Decided On
Judge
AppellantShri Arvind Kumar Section Officer
RespondentUnion of India (Uoi) (Through the
Excerpt:
.....the hon'ble supreme court has deprecated any interference by this tribunal in the pay scale of the post/cadres in union of india and anr.v. p.v. hariharan (ca 7127/1993) 1997 scc (l&s) 38. the supreme court cautioned the tribunals in interfering with the pay scales since it was a serious matter and has a cascading effect on several other categories. it has been held as under: before parting with the appeals we feel to impelled to make a few observations. over the past few weeks, we have come across several matters decided by administrative tribunal on the question of pay scales. we have noticed that quite often the 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.....
Judgment:
1. These three applicants have filed the present OA for quashing the order of the respondents dated 7.8.2004 and September, 2004 whereby they have been denied the higher pay scale of Rs. 6500-10500 and they pray that they should be granted the benefit of revised upgradation of pay scale of Rs. 6500-10500 as granted to similarly placed officers in the Railways and other Organized Accounts Cadres with effect from 1.1.1996 notionally and with actual financial benefits from 19.2.2003 at par with others and also the consequential benefits with interest at the rate of 18% per annum.

2. These applicants are working as Section Officers (Accounts and Statistics) in the Directorate of Sugar under Ministry of Consumer Affairs, Food and Public Distribution, Department of Food and Public Distribution of the Government of India. As per the recommendation of the 5th Central Pay Commission they were placed in the pay scale of Rs. 5500-9000. The Ministry of Railways (Railway Board) revised and upgraded the pay scale of their Section Officers/Inspectors of Accounts and Cost Accountants in the Railways on 7.3.2003 granting them the pay scale of Rs. 6500-10500 notionally with effect from 1.1.1996 with actual benefits prospectively from 19.2.2003, the date of approval of the said proposal by the Cabinet. The pay scale of Accounts Post in the Organized Accounts Cadres in Others Ministries/Departments have also been similarly upgraded, but the applicants, who were working as Section Officers (Accounts and Statistics) and as per their allegation, and are discharging more onerous duties, have been denied the benefit of this upgradation. Their representation had been rejected by the Ministry vide letter dated 7/8th October, 2004 (Annexure A-1) on the ground that the upgraded pay scale for the Accounts Post are specific to the post in Accounts Cadres and not Section Officer (Accounts and Statistics) in the Directorate of Sugar. The applicants are aggrieved and have filed the present OA. Their contention is that the principles of equal pay for equal work enshrined in Article 14 and 16 of the Constitution of India has been violated by not granting them parity with their counter-parts in the Railways and other Ministries/Departments. It is submitted that the applicants are holding a Group ' B' Gazetted post and no Gazetted post under the Government of India carries the pay scale of less than Rs. 6500-10500. Further, the duties performed and responsibilities discharged by the applicants were similar and in some respect more onerous than those of their counter-parts in Accounts Cadre.

3. The respondents in their counter-reply have repudiated the claim of the applicants on the ground that the benefit of the upgraded/revised pay scale of Rs. 6500-10500 has been approved by the Government of India to the Accounts post of Organised Accounts Cadre and is not applicable to others. It is submitted that the upgradation of the pay scale of Section Officer of the Accounts Staff was initially allowed vide Railway Board's Order dated 7.3.2003 in the Railways from the existing scale of Rs. 5500-9000 to Rs. 6500-10500 after the Cabinet had approved the same in pursuance of the Vth Central Pay Commission contained in para 83.235 of its report. Keeping in view the fact that the pay scales of the corresponding categories in various Accounts Cadres had traditionally been at par, the Government of India, Department of Expenditure decided that the dispensing of the Railways may be extended to the corresponding categories in all the Organised Accounts Cadres. The pay scale of various posts in the accounts cadre existing in various Ministries/Departments of the Government of India was upgraded accordingly on notional basis with effect from 1.1.1996 with actual payment from 19.2.2003, i.e., the date on which the decision was approved by the Government vide OM dated 28.2.2003. The Department of Expenditure vide OM dated 1.4.2004 had categorically clarified that the dispensation of revision of pay scales of Accounts Staff has been limited to the posts in the Organised Accounts Cadre, i.e., CGDA, CGA,, IA&AD,, P&T and Railways and it has not been extended to any accounts posts not belonging to one of the Organised Accounts Cadres. The representation of the applicants were rejected after due consideration in consultation with the Ministry of Finance, Department of Expenditure clearly mentioning that the upgraded pay scale for Accounts Staff were specific to the post in Organised Accounts Cadre and not applicable to the pay of Section Officers (Accounts & Statistics) in the Directorate of Sugar. While granting these scales to various posts, due consideration was given to the fact that granting pay revision did not disturb the existing vertical and horizontal relativity of the cadre. The respondents in their counter-reply have also given comparative chart of hierarchy in the Organised Accounts cadre on the one hand and Accounts Posts in the Directorate of Sugar on the other. In the counter reply it was emphasised that the channel of hierarchy in the organized Accounts Cadre were materially different.

The post of Section Officer (Accounts and Statistics) in the Directorate of Sugar is filled up by promotion from the post of Assistant (A&S) whereas the post of Section Officer in the Organised Cadre are filled by Direct Recruitment on the basis of the Open Examination by the Staff Selection Commission or on promotion on the basis of Departmental Examination. Further more para 67.7 of the 5th Central Pay Commission has denied any upgradation of pay scale of the Inspecting Officers (Sugar), a post just above the post of Section Officer (Accounts and Statistics) and upgradation of the pay scale would have impact on the inter-se vertical relativity of the cadre.

5. In the additional reply the respondents further stated that the officers belonging to Organised Accounts Cadre are responsible for accounting of all revenues and expenditure transactions of the Government whereas the Section Officers (Accounts and Statistics) of Directorate of Sugar are not required to perform any such work. Further upgradation of the pay scale of Section Officers (Accounts) of the Accounts staff was initially allowed in the Railways from existing pay scale of Rs. 5500-9000 to Rs. 6500-10500 only after the Cabinet had approved the same in pursuance to the recommendation of the Vth Central Pay Commission contained in Para 83.235 of its report. Keeping in view the fact that the pay scales of the corresponding categories in various Organised Accounts Cadres have traditionally been at par with the Government of India, Ministry of Finance and Company Affairs, Department of Expenditure decided that the dispensing approved in the Railways may be extended to the corresponding categories to all the Organised Accounts Cadre. From the facts submitted by the applicants in the rejoinder it is also clear that the pay scale of Section Officers (A&S) was not at par with the pay scale of CSS even before the 4th Central Pay Commission. It is also stated that the Appointing Authority in the case of the Assistant and Section Officers (CSS) is the President of India whereas in the case of Section Officer (A&S) is the Secretary to the Government of India, so both the categories are not comparable.

6. We have heard the learned Counsel for the parties and carefully considered the submissions made at the bar.

7. The case of the applicants is that they, as Section Officers (A&S) in the Directorate of Sugar, are performing duties of similar nature in some respect more onerous than the Accounts Post in other Organised Accounts Cadre or in other departments so they should not be denied the upgradation of the pay scale granted to the Organised Accounts Service and to accounts post in some other department. Referring to Annexure A-2, which is a letter of the Government of India, Ministry of Finance, Department of Expenditure it is submitted that the Accounts post in LRS Institute of Tuberculosis and Allied Diseases, CPWD and BSNL have also been granted the upgraded pay scale of Rs. 6500-10500. However, the letter itself showed that the Government had disapproved the grant of upgraded pay scale of Rs. 6500-10500, which was granted to the Organised Accounts Cadre, to other Accounts Posts in some other departments including the aforementioned departments. It was emphatically stated in the said letter that the benefit of OM dated 28.2.2003 may not be extended to the Accounts Staff not belonging to any organized cadre.

8. The post of Section Officer (A&S) in Directorate of Sugar, a subordinate Office, is not an Organised Accounts Service/Cadre. It has its own hierarchy of lower and higher posts. It is well settled that unless hostile discrimination and inequality in the pay scale of two posts is clearly established, it will be imprudent on the part of this Tribunal to assume the role of a specialized body/committee like the Pay Commission and proceed to decide about the pay scales to be granted to a particular post. In the present case it is the case of the respondents that the upgraded pay scale of Rs. 6500-10500 was granted by the Government of India initially to the Railways Organised Accounts Cadres pursuant to the recommendation of the Vth Central Pay Commission in its report and that the benefit of that order was extended to other Organised Accounts Cadres keeping in view that in the past other Organized Accounts Services were carrying the pay scale comparable with the Organized Accounts Service of the Railways. Had it been not done, it could be said that there was a hostile discrimination between the two similar circumstanced and similarly situated cadres? But in the present case the applicants were working as Section Officer (A&S) in the Directorate of Sugar in their own hierarchy of posts. They cannot claim parity with the Organized Accounts Cadres detailed for duty in some Ministry and Departments of the Government of India. Any upward change in the pay scale of Section Officer (A&S) in the Directorate of Sugar would create an imbalance in the hierarchy of lower as well as higher post in the Directorate of Sugar.

9. Simply because certain other departments like LRS Institute of Tuberculosis & Allied Diseases, CPWD and BSNL or any other Government Department has extended the benefit of the OM dated 28.2.2003 to their Accounts Staff/Cadre mistakenly that would not entitle the applicants also to be extended the upgraded pay scale incorrectly. The principles of equality before law enshrined in Article 14 and 16 will not be applicable in such cases. The discrimination in the pay scale of Section Officer (A&S) and that of the Section Officer (Accounts) in Organized Accounts Cadre is on an intelligible differentia. Simply because the designation of both the posts is Section Officer (A&S) or Section Officer (Accounts) or they are dealing with accounts is not enough to conclude that both the posts are similarly situated or similarly circumstanced so as to entitle to an equal treatment and any differential pay scale would be a hostile discrimination calling for an interference by the Tribunal. Factors like eligibility, minimum educational qualifications, nature of duties and responsibilities, work load, professional skill and proficiency are also to be taken into consideration while deciding the pay scale appropriate to the post. The pay scale are not to be decided on the sole basis of designation but other factors have also to be considered for granting a particular pay scale attached to a post. Principle of equal pay for equal work can be enforced only after the Tribunal is satisfied that not only the nature of work is identical but also in all other aspect the applicant and the persons working in Organised Accounts Cadre form same class and there was no apparent reason to treat equals as unequals. Unless a very clear case is made out and the court is satisfied that the scale provided to a post or a group of posts or service amounted to discrimination, without there being any justifiable reason, the court cannot itself assume the responsibility of fixation of scale of pay when the Government has given discernable reason for upgradation of the pay scale of a cadre/post.

10. It will be appropriate here to refer to the order of the Full Bench of the Tribunal in Shri M.V.R. Rao and Ors. etc. etc. v. Union of India and Ors. in 2002-03 A.T. Full Bench Judgments 260 relied upon by the respondents where disparity between the Stenographers and Assistants working in CSS/CSSS which performed duties qualitatively and quantitatively more arduous was upheld.11. The Hon'ble Supreme Court has deprecated any interference by this Tribunal in the pay scale of the post/cadres in Union of India and Anr.

v. P.V. Hariharan (CA 7127/1993) 1997 SCC (L&S) 38. The Supreme Court cautioned the Tribunals in interfering with the pay scales since it was a serious matter and has a cascading effect on several other categories. It has been held as under: Before parting with the appeals we feel to impelled to make a few observations. Over the past few weeks, we have come across several matters decided by Administrative Tribunal on the question of pay scales. We have noticed that quite often the 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 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 in to the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue very often, the doctrine of equal pay for equal work, is also being misunderstood and misapplied freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matterSecretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors. has succinctly laid down the parameters for interference of the court in such matters: 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 emphasize 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 13. Referring to the above judgments, the Hon'ble Supreme Court in para 10 of its judgment in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association has observed as under: 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 14. The Tribunal, as such, has to exercise restrain in granting pay scale to a class/category of employees at par with some other employees carrying same designation who have been granted higher pay scale especially when upgraded of pay scales are granted on intelligible differentia. Comparison of pay scale of two groups of employees of different organizations/departments of the Government based merely on similarity in designation would be improper. Only Expert Bodies like Pay Commission or Administrative Body/Committees will be well equipped in dealing with the subject matter. The Tribunal will intervene only when there is hostile discrimination and equals are treated with inequality by the administrative authorities arbitrarily. The change of pay scale has a cascading effect giving rise to similar claim from other category of employees and may also create anomalous situation like in the present case. It will effect the higher promotional post in the hierarchy of Section Officer (A&S). Instances have been cited like LRS Institute of Tuberculosis and Allied Diseases, CPWD and BSNL etc.

where the benefit of the upgraded pay scale in the OM dated 28.2.2003 has been recklessly extended to some accounts posts in those departments which were not part of Organised Accounts Cadre. The Government has already disapproved such upgradation in posts other than Organised Accounts Service and Accounts Posts.

15. In the circumstances, firstly we do not find that there is any material produced before us to conclude that there is a hostile discrimination suffered by the applicant or that the equals are being treated as unequal by denying the applicants the upgraded pay scale of Rs. 6500-10500 which has been granted to Organised Accounts Cadre in certain Ministries or Departments of the Government of India. Secondly it is not the role of the Tribunal to assume upon it the responsibility to consider the upgradation of the pay scale of the post or a service by probing into the matter like the Pay Commission or the Administrative Committees for deciding about the pay scale of a particular service or cadre.

16. The proper course for the applicants was to have taken up the matter of extension of the upgraded pay scale arising out of the OM dated 28.2.2003 with the competent authority in the Directorate of Sugar and with their nodal Ministry. In fact, they have already taken such course. But their nodal Ministry, despite the recommendation of the lower functionaries, i.e., Directorate of Sugar, had refused to accede to their prayer with which we have no reason to interfere.

17. For the reasons stated above, the OA is dismissed. However, the parties are left to bear their own costs.


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