DR. A.K. MISHRA, MEMBER (A)
1. The present application has been made by two Superintendents Gr.II, National Water Development Agency (NWDA), an autonomous body under the Ministry of Water Resource seeking parity of pay scale with the Office Superintendents of Central Water Commission (CWC) w.e.f. 01.01.1996, the date when the revised pay scales following recommendations of the Fifth Central Pay Commission were implemented.
2. The case of the applicants, in brief, is as follows:-
The employees of NWDA had parity of pay scales with their counter-parts in CWC till implementation of the recommendations of the Fifth Central Pay Commission. The following table would indicate the pay scales applicable to Head Clerks and Superintendent Gr.II of NWDA, Head Clerks and Office Superintendents of CWC:-
|Head Clerk in NWDA||Assistant in CWC|
|Rs. 1400-2300 (IV CPC)||Rs.1400-2300 (IV CPC)|
|Rs. 4500-7000 (V CPC)||Rs.5000-8000 (V CPC)|
|Superintendent Gr.II in NWDA||Office Superintendent in CWC|
|Rs.1600-2660 (IV CPC)||Rs.1600-2660 (IV CPC)|
|Rs.5000-8000 (V CPC)||Rs. 5500-9000 (V CPC)|
|Rs.9300-34800 (VI CPC)||Rs. 9300-34800 (VI CPC)|
3. Grievance of the applicants is that this disparity which was introduced only during the currency of the recommendations of the Fifth Central Pay Commission was unjust, arbitrary, which could not be supported by any rational and cogent argument.
3.1 The applicants represented their cases before their Director General who placed it before the Finance Committee of NWDA. However, since the decision about pay scale was taken pursuant to specific instructions issued by the Ministry of Finance and specific provisions of the Revised Pay Rules, they could not get any satisfactory relief. They filed Writ Petition before the Hon’ble High Court of Delhi which was transferred to the Tribunal and numbered as TA-21/2008. It was partly allowed in the order dated 23.09.2008 of the Tribunal directing the respondents to re-consider the claim of the applicants for grant of pay scales as applicable to their counterparts in CWC. The respondents challenged it by filing Writ Petition No. 427/2009 in which the direction of the Tribunal was upheld. The respondents passed the impugned order dated 30.11.2009 in pursuance of the directions issued in Writ Petition No. 427/2009 but rejected the claim of the applicant for grant of parity in the matter of pay scale; hence the O.A.
4. Learned counsel for the applicants submits that the directions of the Tribunal and the Hon’ble High Court of Delhi have not been properly complied with by the respondents. There is no dispute that Head Clerks and Superintendents Gr.II in NWDA had parity of pay-scale during the currency of the pay-scales recommended by the Fourth Central Pay Commission and earlier. It was disturbed only during the Fifth Central Pay Commission where two sets of different pay-scales were recommended (i) contained in Part-A of Schedule-I and (ii) contained in Part-B of the same Schedule. Part-A related to autonomous bodies whereas Part-B related to government employees. Since the employees of CWC have the status of government employees, the Commission being an attached office of the Ministry of Water Resources, the pay scales prescribed in Part-B were made applicable to the Commission employees, whereas lower pay-scales stipulated in Part-A of the Schedule were made applicable to the employees of autonomous bodies including NWDA.
4.1 When the matter was referred to the Ministry of Finance, again they gave the following arguments defending the differential treatment meted out to employees of NWDA:-
“1. NWDA is an autonomous body under the Ministry of Water Resources and only the normal replacement scales under part ‘A’ of CCS (RP) Rules 1997 may be extended in accordance with the provisions of O.M. No. 7(34)/E.III.A/97 dated 02.12.1997.
2. As per RRs there is difference in the qualifying period for promotion to Head Clerk and Assistants in CWC which is five years in NWDA and 8 years in CWC.
3. From the comparison made by the AM between the post of Head Clerk and Assistant, it has been observed that there is a huge difference in the hierarchy of the post of Head Clerk in the NWDA and CWC. The promotional post of Head Clerk in NWDA is Superintendent Grade-II in the pay scale of Rs.5000-8000 and the promotional post of Superintendent Grade-II is Superintendent Grade-I in the pay scale of Rs.6500-10500. In their hierarchy the other posts are Administrative Officer, Deputy Director (Admn) and Director (Admn.). However, in the CWC the promotional post of Assistant is Office Superintendent in the pay scale of Rs.5500-9000 and there is no promotion avenue for the office Superintendent in CWC. In view of this wholesale identity is not established between post of Head Clerk in NWDA and Assistant in CWC.
4. The promotional post of Head clerk i.e. Office Superintendent Grade-II is also in the pay scale of Rs.5000-8000. Therefore, vertical relativities shall be disturbed on upgradation of the pay scale of Head Clerk.”
4.2 Learned counsel submits that the second ground is not based on facts. The difference in the qualifying period for promotion to the rank of Head Clerk according to him was introduced only in the year 2001, which was not available as on 01.01.1996. He further submits that the employees of CWC in the grade of Office Superintendent are eligible for promotion to the rank of Section Officer, Under Secretary, etc. as is available to Members of Central Secretariat Ministerial Cadre.
4.3 Learned counsel for the applicants further submits that since there was no difference as far as qualification and nature of work of the employees were concerned the recommendation of the governing body was for extending the same pay scales as are applicable to their counterparts working in the CWC. Such a recommendation could not be countermanded by the Finance Committee of the governing body. Byelaw 26(a) of NWDA says that pay scales, allowances and revision thereof for the employees of the NWDA will be adopted with the approval of Government of India in consultation of Ministry of Finance (Department of Expenditure). However, approval of Government of India need not be sought in regard to adoption of scales or pay and allowances identical to those adopted for corresponding posts as per the Central Govt. orders issued from time to time. Since there was no need for approval of Government of India in regard to adoption of pay scale of corresponding posts in Central Government, there was no need for seeking any approval of the Ministry of Finance. The corresponding pay scale available to the employees of CWC should have been automatically made available to the employees of NWDA. He also placed reliance on the judgment of the Hon’ble High Court of Judicature : andhra Pradesh at Hyderabad in Writ Petition No. 14046/1993 decided on 06.01.2003 in which the denial of corresponding scale of Rs.1640-2900/- to the Stenographer Gr.II of NWDA was held to be unjustified.
4.4 It may be stated here that the facts of andhra Pradesh case are entirely different. They are about recovery of excess payment made and not strictly applicable to the facts which are before us.
5. Respondents, on the other hand, have stated that pay of the employees of NWDA including the applicants have been revised strictly according to the provisions of the Revised Pay Rules, 1997. There was a specific recommendation contained in Part-A, which was applicable to autonomous bodies. The issue has been decided by the Expert Body, namely, Fifth Central Pay Commission after taking into account all the factors and the decision of the government taken on that basis and incorporated in Revised Pay Rules cannot be challenged in a Court of Law.
5.1 Learned counsel places reliance on the following judgments:-
(i) Steel Authority of India Ltd. and Ors. Vs. Dibyendu Bhattacharya, 2011(2)SLR 243;
(ii) Stenographers Association, CPWD (Regd.) and Ors. Vs. U.O.I. and Ors. (OA-2026/2010) decided on 09.12.2011 by the Principal Bench of CAT;
to contend that the issue of revision of pay is very much within the domain of the Executive and should not be interfered with. The observations of Honble Supreme Court in Steel Authority of India Ltd. and Ors. (supra) at paragraph-26 reads as under:-
“26. In view of the above, the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity, must plead necessary averments and prove that all things are equal between the concerned posts. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties. The onus to establish the discrimination by the employer lies on the person claiming the parity of pay. The expert committee has to decide such issues, as the fixation of pay scales etc. falls within the exclusive domain of the executive. So long as the value judgment of those who are responsible for administration i.e. service conditions etc., is found to be bonafide, reasonable, and on intelligible criteria which has a rational nexus of objective of differentiation, such differentiation will not amount to discrimination. It is not prohibited in law to have two grades of posts in the same cadre. Thus, the nomenclature of a post may not be the sole determinative factor. The courts in exercise of their limited power of judicial review can only examine whether the decision of the State authorities is rational and just or prejudicial to a particular set of employees. The court has to keep in mind that a mere difference in service conditions does not amount to discrimination. Unless there is complete and wholesale/wholesome identity between the two posts they should not be treated as equivalent and the Court should avoid applying the principle of equal pay for equal work.”
The Apex Court in the case of Mallikarjuna Rao Vs. State of A.P., 1990(2) SCC 707 has held that ‘it is neither legal nor proper for the High Courts or the Administrative Tribunals to issue directions or advisory sermons to the executive in respect of the sphere which is exclusively within the domain of the executive under the Constitution’. If there was any anomaly, it was for the applicants to place it before the Anomaly Committee. As a matter of fact, pursuant to the direction of this Tribunal and Hon’ble High Court, the matter was examined afresh in depth in consultation with the Ministry of Finance (MOF). There is no dispute that NWDA is a Society registered under Society Registration Act, whereas CWC is an attached office of the Central Government. Therefore, the status of employees working in NWDA and CWC is quite different.
6. We find that there is no infirmity in the decision making process and the impugned order has taken into consideration all the aspects of the case. It is true that according to Byelaw 26(a) no prior approval was necessary as regards adoption of pay scale as prescribed under the Revised Pay Rules. Any deviation thereafter necessarily had to have the prior concurrence of the Department of Expenditure, Ministry of Finance. In this case, the pay scales prescribed in the Revised Pay Rules as applicable to employees of autonomous body have been automatically made available to the applicants without any reference to the Government. But, any deviation there from had necessarily to be referred to Ministry of Finance. Mere recommendation of the Director General would not give any rights in favour of the applicants. The Bangalore Bench of this Tribunal considered the identical issue in OA-39/2009 filed by the employees of NWDA and made the following observation in its order dated 28.12.2011:-
“9. We have perused all the records and heard both the learned counsels. The status of N.W.D.A., an autonomous body functioning under the Ministry of Water Resources, being different from that of the subordinate and attached offices, such as Central Water Commission, functioning under the said Ministry, we agree with the learned counsel for the respondents that the applicant does not have an inherent right to claim upgradation to the pay scale of Rs.5000-150-8000/-.”
6.1 As has been pointed out by the Department of Expenditure, the promotional prospects in NWDA and CWC are different. The Superintendent Gr.II in NWDA can be promoted to the next rank of Superintendent Gr.I whereas the Office Superintendent of CWC have to seek their promotion along with many others in the Central Government for promotion to the Central Secretariat Service. Therefore, the observations of Department of Expenditure cannot be brushed aside as incorrect.
6.2 Admittedly, specific directions were given by this Tribunal and upheld by the Hon’ble High Court asking the respondents to re-examine the issue in the matter of parity. Following this direction, the issue has been examined in consultation with the Ministry of Finance (Department of Expenditure). It has been clearly brought out that there are differences and taking into consideration the vertical relativity and the specific recommendation of the Fifth Central Pay Commission, the Government had accepted the separate pay-scales prescribed for autonomous bodies and government employees. It is also not disputed that the Revised Pay Rules have in fact prescribed separate schedules for such employees. Following the ruling laid down by the Hon’ble Supreme Court, which has been cited by the respondents and adverted to in Paragraph-6, it would be injudicious on our part to interfere with the recommendations of the pay scales prescribed in the Pay Rules.
6.3 We have already discussed the Byelaw 26(a) of NWDA. We fail to appreciate the contention of the learned counsel for the applicants that the import of the Byelaw was anything to the contrary.
7. The decision of the Hon’ble High Court of andhra Pradesh in Writ Petition No. 14046/1993 (supra) referred to by the learned counsel for the applicant was about recovery of excess amount of paid. It has no relevance to the present case. As far as decision of governing body is concerned, it may be mentioned that it is always subject to the provisions of the Byelaw referred to above. NWDA, a full funded organization of Government of India has to abide by the instructions of the Government in the matter of pay scales and its revisions. This issue has been decided by the Bangalore Bench of this Tribunal and we have no reason to differ with that decision. In the result, the O.A. is dismissed. No costs.