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9/25/13 ( vs (By Advocate Shri A.K. Bhardwaj) on 19 February, 2009

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Mobile ViewCentral Administrative Tribunal - DelhiIndian Kanoon - http://indiankanoon.org/doc/14959799/

Central Administrative Tribunal - Delhi( vs (By Advocate Shri A.K. Bhardwaj) on 19 February, 2009

PRINCIPAL BENCH, NEW DELHI

O.A. No.164/2009

MA No.141/2009

New Delhi this the 19th day of February, 2009

Honble Mr. Shanker Raju, Member (J)

Honble Dr. Veena Chhotray, Member (A)

1. S.R. Dheer,

S/o late Shri C.L. Dheer,

R/o RZ G-123B,

Mahavir Enclave,

New Delhi-110045.

2. Rakesh Sareen,

S/o Shri S.K. Sareen,

R/o B-1/494, Janakpuri,

New Delhi-110 029.

3. Sanjeev Kumar,

S/o Shri V.D. Kaushik,

R/o H.No. 266, Shahbad Mohd.Pur,

New Delhi-110 061.

4. Anand Singh,

S/o Sh. Bishan Singh,

R/o H.No. 243, Sec.3,

Sadiq Nagar,
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New Delhi 110 049.

5. N.S.N. Rao,

S/o Shri N.Kameshwar Rao,

R/o H.No. F-354, Sec.9,

Vijay Nagar,

Ghaziabad.

6. Naresh Ahuja,

S/o Shri Gopal Dass,

R/o H.No. 376,

Gali No. 12, Madanpuri,

Gurgaon 122 001 (Haryana).

7. Dinesh Mishra,

S/o Shri J.P. Mishra,

R/o 783, Timarpur,

Delhi.

8. Smt. Vinita Virmani,

W/o Shri Subhash Virmani,

R/o 150, Bannu Enclave,

Saraswati Vihar, Pitampura,

New Delhi 110 034.

9. Santosh Kumar

S/o Shri Shanti Sarup,

R/o H.No. 1708-A/4,

Govindpuri Extension,

Kalkaji, New Delhi-19.

(Applicant nos. 1 to 9 are working as Private Secretary in Central Administrative Tribunal,

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Principal Bench, New Delhi).

10. Anjani Kumar Jha,

S/o Sh. U.C. Jha,

R/o 583, R.K. Puram,

Sector 4,

New Delhi 110 022.

11. L.R. Sharda,

S/o late Sh. M.L. Sharda,

R/o H-167, Rama Krishana Vihar,

Plot No. 29, 8th Avenue, IP Extn..,

Delhi 110 092.

12. V.K. Srivastava,

s/o late Sh. G.N. Sahai,

R/o F-800, Timarpur,

Delhi.

13. B.K. Juneja,

S/o Sh. K.L. Juneja,

R/o A-586, Sector 9,

New Vijay Nagar,

Ghaziabad (UP).

14. R.C. Pasbola,

S/o late Sh. D.N. Pasbola,

R/o E-5/11, FF Malviya Nagar,

New Delhi 110 017.

15. S. Rangarajan,

R/o E-102, Nanakpura,

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Moti Bagh-II,

New Delhi 110 021.

16. Mahendra Kumar Goyal,

S/o late Sh. Rameshwar Dass,

R/o G-22/142, Sector 7,

Rohini, Delhi 110 085.

17. Ram Chander

S/o late Sh. Mohan Lal Sharma,

RZ 46/1 65, Gali No.7,

Durga Park, P.O. Palam,

New Delhi 110 045.

18. Vijay Kumar

S/o late Sh. Ganpat Rai,

11 5, Himayun Pur,

Safdarjung Enclave,

New Delhi.

19. Surat Singh

S/o Sh. Nain Singh,

R/o C-1/61, Sector 17,

Rohini, Delhi 110 085.

20. S.P.S. Rawat,

S/o Sh. D.S. Rawat,

R/o 244/94-C, School Block,

Mandawali, Delhi 110 092.

21. Dinesh Chander Singh

S/o late Sh. K.S. Rawat,

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R/o RZ-38, Dabri Ext.,

Post Office Palam,

New Delhi 110 045.

22. K.K. Pukhral,

S/o late Shri J.S. Pukhral,

R/o K-10, 2nd Floor,

Khirki Extension, Malviya Nagar,

New Delhi-110017.

(Applicant Nos. 10 to 22 are working as Section Officers in Central Administrative Tribunal,

Principal Bench, New Delhi).

-Applicants.

(By Shri G.D. Gupta, Senior Counsel alongwith Shri S.K. Sinha, Advocate)

-Versus-

1. Union of India represented through the Secretary to Government of India, Department o

Expenditure, Ministry of Finance, North Block, New Delhi 110 001 .

2. The Secretary to Government, Department of Personnel & Training, Ministry of Personnel,

Public Grievances & Pensions, North Block, New Delhi.

(By Advocate Shri A.K. Bhardwaj)

3. The Principal Registrar, Central Administrative Tribunal, Principal Bench, New Delhi. -

Respondents.

(By Advocate Shri D.S. Mahendru)

O R D E R

Mr. Shanker Raju, Honble Member (J):

Equality in law is a Fundamental Right guaranteed to all citizens of this country under Article 14 o

the Constitution of India. Any invidious discrimination, which does not pass the twin tests o

reasonableness under the Constitution of India, shall amount to treating the equals differently and

is a hostile discrimination not approved in law by the Constitution Bench of the Honble Supreme

Court in D.S. Nakara v. Union of India, 1983 SCC (L&S) 145.

2. No doubt, in service jurisprudence, legitimate expectation is a cardinal principle though not in
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substantive law to operate both in procedural and substantive matters, as ruled by the Apex Court

in Jitender Kumar v. State of Haryana, 2008 (1) SCC (L&S) 428, as also ruled in M/s Sethi

Auto Service Station v. D.D.A, 2008 (13) SCALE 783.

3. In Official Liquidator v. Dayanand, 2008 (10) SCC 1, the Apex Court has held that though not

being a right the expectation should be legitimate, reasonable and valid and one has a legitimate

expectation of a particular treatment if by any representation or promise made by the authorities

expressly or impliedly gives room for such expectation in normal course.

4. In the administrative arena, the orders passed are to be tested on the touchstone o

reasonableness, as ruled by the Apex Court in Noida Enterprises Association v. Noida Authority,

2008 (1) SCC (L&S) 672. Equal pay for equal work though may not be a Fundamental Right

guaranteed to a government servant, yet an abstract doctrine in consonance with the principle o

equality enshrined under Article 14 of the Constitution of India, a hostile discrimination, which is

illogical, irrational and illegal and in a case where there is no intelligible differentia which has a

reasonable nexus with the object sought to be achieved, similarly placed cannot be invidiously

discriminated in the matter of pay scale.

5. Though as a trite law equation of pay primarily concerns the executive Government and expert

body, but where all the functional requirements being identical, irrelevant consideration to treat

differently in the matter of pay is an exception carved out for interference in judicial review in the

matter ofequal pay for equal work.

6. With the above backdrop of trite law, this OA has been filed by a group of Private Secretaries and

Section Officers working in the Principal Bench of the Central Administrative Tribunal. Though a

challenge has been made to orders passed by the respondent No. 2, on 11.9.2008 and 23.10.2008,

addressed to respondent No.3, whereby it has been communicated that till a final decision is taken

by the Ministry of Finance and necessary amendments are carried out in the recruitment rules,

they may be accorded the replacement scales as approved consequent upon acceptance o

recommendations of the VI Central Pay Commission, the grievance of applicants is that despite a

historical parity being maintained since inception of the Tribunal in 1985 with their counterparts in

Central Secretariat Service/Central Secretariat Stenographers Service (hereinafter referred to as

CSS/CSSS), they have been deprived of the Grade Pay of Rs.4800/- in Pay Band-2 and on

completion of four years service, the Grade Pay of Rs.5400/- in Pay Band-3. Therefore, they have

prayed for a declaration that the action of Respondent Nos. 1 and 2 is arbitrary, discriminatory,

illegal and violative of Articles 14 and 16 of the Constitution, with a further declaration that

PSs/SOs of the CAT have always had a historical parity with their counterparts in CSS/CSSS and

are entitled to the Grade Pay of Rs.4800/- and 5400/- on completion of four years service. They

have also prayed for quashing and setting aside the orders dated 11.09.2008 and 23.10.2008 and

for a direction to the respondents to grant the aforesaid Grade Pay with all consequential benefits

w.e.f. 1.1.2006, along with interest on delayed payment.

BRIEF FACTS:
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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:

A) CENTRAL SECRETARIAT

Sl.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) . 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 6500-1 0500

*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 TRIBUNAL

Sl.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

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(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) . 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 6500-1 0500

4 Principal Private Secretary/

Deputy Registrar Group A (Gazetted)/

General Central Service (Ministerial) 10000-15200

8. From the above, it is clear that from the very inception of the Tribunal in 1985, there has been

parity between the employees of the CAT with that of their counterparts in the CSS/CSSS and the

only disparity, which cropped up was grant of pay scale of Rs.1640-2900 to the

Assistants/Stenographers Grade C in the Central Secretariat. Assistants and Stenographers Grade

C in CAT represented to the Government for revision of their pay scale to Rs.1640-2900 from

Rs.1400-2600, to bring them at par with the corresponding categories in CSS/CSSS. However,

their representations were rejected, which led to filing of OA Nos. 2865/1991, 529/1992 as well as

OA-178/1992 before the Principal Bench and Cuttack Bench of the Tribunal. The aforesaid OAswere allowed by the Tribunal, directing the respondents to consider grant of revised pay scale o

Rs.1640-2900 to the Assistants/Stenographers Grade C of the CAT. Resultantly, Government o

India by letter No.G.26012/92-A dated 29.10.1993 granted the pay scale of Rs.1640-2900 to the

Assistants/Stenographers Grade C of the CAT w.e.f. 1.1.1992, thus bringing them at par with their

counterparts in CSS/CSSS, without waiting for the formal amendment in the Rules. Thereafter vide

Gazette Notification dated 25.10.1994, the recruitment rules had undergone amendment, bringing

the Assistants/ Stenographers Grade C of the CAT at par with their counterparts in the CSS/CSSS,

as annexed by the applicants at Annexure D (colly).

9. An OM was issued by the Department of Personnel & Training (DoP&T) granting a

higher pay scale of Rs.3000-4500 to those PSs, who had rendered 8 years regular service in the

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grade of Rs.2000-3500 and who were attached with the Secretary level officers. Accordingly, PSs,

who were attached with Honble Chairman/Vice-Chairmen in the CAT, made representations to the

Government for granting the same pay scale to them as well on the principle ofequal pay for equal

work. However, their representations were rejected without any proper justification. Being

aggrieved, Shri S.K. Sareen, one of the PSs, who was at the relevant time attached with the Honble

Vice Chairman, filed OA No.777/1992, which was allowed by the Tribunal vide order dated

20.12.1999. Writ Petition (Civil) No.2500/2000 filed by the Union of India against the aforesaiddecision was dismissed on 19.4.2002. Even the SLP No.1565/2003 filed by the Union of India was

dismissed on 28.2.2003, affirming the decision of the Tribunal in S.K. Sareen (supra). In compliance

of the aforesaid decision of the Tribunal, Government of India passed order dated 9.2.2005

(Annexure G), revising the pay scale from Rs.2000-3500 to Rs.3000-4500 (pre-revised) and one

post of Principal Private Secretary (PPS) was upgraded to the pay scale of Rs.12000-16500 from

Rs.10000-15200 as Senior Principal Private Secretary and 16 posts of PSs attached to the Honble

Vice Chairmen in CAT to Principal Private Secretary from the scale of pay of Rs.6500-10500 to

Rs.10000-15200 (pre-revised), thereby again bringing the PSs of the CAT at par with theircounterparts in CSSS.

10. Vide order dated 25.1.2006 (Annexure H), the Government of India granted Non-Functional

Selection Grade (NFSG) of Rs.8000-13500 to the PSs/SOs in the CSSS/CSS. Having denied the

same benefit to the SOs/PSs in the CAT, some of the PSs working at Ernakulam Bench of the

Tribunal filed OA No.475/2006, for grant of NFSG of Rs.8000-13500, claiming historical parity

with the PSs of CSSS. The said OA was disposed of with a direction to the respondents to consider

the claim of applicants, who are PSs in the Ernakulam Bench of the Tribunal, in the light of the

averments made in the OA as well as the legal questions considered in the earlier judgments by the

Tribunal and communicate a decision to the applicants. Non-compliance of the order led to filing o

CP No.05/2007, which was, after hearing, disposed of on 6.11.2007, with a direction to the

respondents to furnish the details of reference to the VI Central Pay Commission either by way o

an affidavit by an officer at appropriate level or by filing the copies of the very reference, with copy

to the counsel for the applicants, within a period of six weeks and the matter was converted into an

execution application and directed to be listed on 2.1.2008. Thereafter, again in MA No.854/2008,

a direction was issued on 28.2.2008 to the Secretary, DoP&T to personally handle the matter

or at least monitor the matter and try to persuade the VI Central Pay Commission to consider the

case of the applicants and other similarly situated. The Principal Registrar, CAT (respondent No.3

herein), was also directed to make available all the relevant materials to the Secretary and have

due interaction with the DoP&T. Although in spite of aforesaid directions no reference was

made to the Sixth Pay Commission, but, on 21.4.2008, learned senior standing counsel appearing

for DoP&T & Ministry of Finance filed compliance affidavit, stating as follows: I am the

Senior Central Government Standing Counsel appearing for the respondents in the above Original

Application. This statement is filed on the basis of the instructions furnished by the respondents.

2. The above Miscellaneous Application had been filed by the petitioner/Applicant alleging

disobedience of the directions contained in the Annexure P-1 Order of this Honourable Tribunal in

Original Application No.475 of 2006 and also such other reliefs.

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3. In this connection it is pertinent to note that the Respondents had fully complied with the

directions of this Honourable Tribunal in the above Original Application contained in the Order

dated 3.4.2007.

4. As per the directions of this Honourable Tribunal in the order dated 28.2.2008 the respondents

have fully complied with the order. The Sixth Central Pay Commission has already submitted its

report to the Government in which the Commission has examined and recommended the issue o

parity of employees of Central Administrative Tribunal with employees of CSS & CSSS cadre

in Paragraph 7.32.25 of its recommendations. A True copy of the relevant portion of the

Recommendations of the 6th Pay Commission, is produced herewith and marked as ANNEXURE

R-1.

5. It is pertinent to submit that pursuant to the Order of this Honourable Tribunal in this case was,

the matter was forwarded for the implementation to the Department of Personnel and Training for

taking up the matter will Pay Commission. Since the report has already been submitted by the 6th

Central Pay Commission to the Government, the directions of this Honourable Tribunal had been

complied with.

6. On a perusal of the above facts, it can be seen that the Respondent had fully complied with the

directions of this Honourable Tribunal contained in the 3.4.2007 in Original Application NO.475 o

2006 in its letter and spirit and there is no wilful negligence or laches on the part of the Respondent

in implementing the order of this Honourable Tribunal within the stipulated time. The Respondent

tender unconditional apology for the delay if any, caused in implementing the order of this

Honourable Tribunal. Hence the above Miscellaneous Application is liable to be dismissed and thisStatement may also be accepted into file as full Compliance Report.

It is pertinent to mention here that the aforesaid compliance affidavit was filed on the basis of the

letter dated 27.3.2008 of the Ministry of Personnel, Public Grievances and Pensions, Department o

Personnel & Training, addressed to the Registrar, CAT, Principal Bench, which reads as

follows: I am directed to refer to your letter No.PB/4/21/06-R dated 20.3.2008 on the above

subject and to say that 6th Central Pay Commission have already submitted its

report/recommendations to the Government on 24.3.2008. As such, it may not be possible to make

any further reference to Pay Commission.

2. However, the 6th Central Pay Commission have in para 3.1.9 and para 7.32.15 of its report (copy

enclosed) relating to CAT have already recommended parity between Assistants/Section

Officers/Stenographers of CSS/CSSS and similarly placed posts in field offices.

In consonance with the aforesaid authority to the effect that VI CPC has recommended the issue o

parity of employees of CAT with CSSS/CSS in para 3.1.9 and para 7.32.15 of the Report, Honble

Tribunal at Ernakulam, on 26.06.2008 gave a direction to the respondents to work out and

disburse pay scale and arrears to all the PSs of the CAT on refixation of their pay. Paras-2 & 3

of the aforesaid order dated 26.6.2008, read as follows: 2. Records would reveal that the Private

Secretaries of Central Administrative Tribunal (CAT) had, under the Vth Pay Commission

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Recommendations been treated at par with their counterparts in the CSS/CSSS Cadre and

accordingly the pay scale afforded to them has been made available to the Private Secretaries o

CAT as well, with effect from 01.01.1996. Again, vide Annexure R-1 to the counter statement dated

21st April 2008, filed on 16th June 2008, the VI Pay Commission has also confirmed the parity

between the two. This means that there is absolutely no question of different pay scales for the

posts of Private Secretaries of CSS/CSSS on the one hand and the CAT on the other. As such, when

for the Private Secretaries of CSS/CSSS the Government had introduced non-functional pay scaleof Rs.8000-13000/-, subject to fulfillment of certain conditions attached thereto, the same non-

functional pay scale is expected to be extended to the Private Secretaries of CAT from the very

same date and subject to similar conditions. Otherwise, it would amount to derailment by the

Government from the finding of the Pay Commission, which is not permissible. Perhaps, the

reservation of the respondents earlier, in extending the non-functional pay scale of Rs.8000-

13500/- to the Private Secretaries of C.A.T. was on account of the apprehension that the VI Pay

Commission may or may not confirm the parity between the two sets of Private Secretaries. Now

that in clear terms, parity has been confirmed by the VI Pay Commission, there should be noimpediment for the respondents to pass suitable orders extending the pay scale of Rs.8000-

13500/- from the date the Private Secretaries of the Central Secretariat Services/CSSS have been

granted, subject no doubt to the fulfillment of the requisite conditions attached thereto.

3. It is a matter of record that such a situation in respect of Section Officers of the CBI has also been

recently set right by the Principal Bench in OA No.377/06 by its order dated 1st May, 2007, which

has been upheld by the Delhi High Court in Civil Writ Petition No.7475 of 2007 and CM No.14234 o

2007 vide order dated 10th October, 2007.

In spite of the aforesaid directions of the Tribunal, Respondents have not passed any order granting

the Non-Functional Selection Grade of Rs.8000-13500 to the applicants.

11. It would be relevant here to extract paras 3.1.9 and 7.32.15 from the Report of VI CPC as

follows:

3.1.9 Accordingly, the Commission recommends upgradation of the entry scale of Section Officers in

all Secretariat Services (including CSS as well as non-participating ministries/departments/

organizations) to Rs.7500-12000 corresponding to the revised pay band PB 2 of Rs.8700-34800

along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS,

the Section Officers in other Secretariat Offices, which have always had an established parity with

CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group B corresponding to the revised

pay band PB- 2 of Rs.8700-34800 along with grade pay of Rs.5400 on completion of four years o

service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified

that the pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800 is being recommended

for the post of Section Officer in these services solely to maintain the existing relativities which

were disturbed when the scale was extended only to the Section Officers in CSS. The grade carry ing

grade pay of Rs.4800 in pay band PB 2 is, otherwise, not to be treated as a regular grade and

should not be extended to any other category of employees. These recommendations shall apply

mutatis mutandis to post of Private Secretary/equivalent in these services as well. The structure o

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posts in Secretariat Offices would now be as under:

Post Pre-revised pay scale Corresponding revised pay band and grade pay

LDC Rs.3050-4590 PB 1 of Rs.4860-20200 along with grade pay of Rs.1900

UDC Rs.4000-6000 PB 1 of Rs.4860-20200 along with grade pay of Rs.2400

Assistant Rs.6500-10500 PB 2 of Rs.8700-34800 along with grade pay of Rs.4200

Section Officer Rs.7500-12000

Rs.8000-13500*

(on completion of 4 years) PB 2 of Rs.8700-34800 along with grade pay of Rs.4800

PB 2 of Rs.8700-34800 along with grade pay of Rs.5400*

(On completion of 4 years)

Under Secretary Rs.10000-15200 PB 3 of Rs.15600-39100 along with grade pay of Rs.6100

Deputy Secretary Rs.12000-16500 PB 3 of Rs.15600-29100 along with grade pay of Rs.6600

Director Rs.14300-18300 PB 3 of Rs.15600-39100 along with grade pay of Rs.7600

*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 MES, Ministry o

Parliamentary Affairs, CBC, UPSC, etc., would therefore be covered.

7.32.15 Assistants and Stenographers in Central Administrative Tribunal have demanded pay

scales on par with Assistants and Stenographers in CSS/CSSS. The Commission has already

recommended parity between similarly placed posts in Field Offices and Secretariat. This will

address the instant demand. No separate recommendation is therefore necessary in this case.

12. Government of India vide Notification dated 29.8.2008 approved the recommendations of the

6th CPC and pay scale of SOs/PSs/equivalent in the CSS/CSSS, as specified in Section-II of Part B

of CCS (Revised Pay) Rules, 2008, was admissible, according to which, the posts of SO/PS whose

pay scale has been revised to Rs.7500-12000 have been placed in PB-2 with Grade Pay o

Rs.4800/- and Rs.8000-13500 on completion of four years in PB-3 with Grade Pay of Rs.5400/-.

The condition precedent for grant of pay scale is that those organizations, which have had a

historical parity with CSS/CSSS service and other organizations like AFHQSS/AFHQSSS/RBSS and

Ministerial/Secretarial posts in Ministries/Departments organizations like MEA, Ministry o

Parliamentary Affairs, CVC, UPSC, etc. were also covered. In implementation of the VI CPC Report,

not only in AFHQ Service but also the departments like R&AW of the Cabinet Secretariat,

UPSC, CBI, CVC, etc. SOs/PSs, have also been given the NFSG w.e.f. 1.1.1996 notionally and

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3.10.2003 on actual basis.

13. Despite specific, clear and unambiguous recommendations of VI CPC, which have been accepted

by the Government, a letter was addressed to the Principal Registrar, CAT dated 11.9.2008

wherein Ministry of Finances Resolution dated 29.8.2008 and Notification of even date were

communicated. It has been stated that the pay of the employees of the CAT may be fixed in the

replacement pay bands. However, necessary amendments will be carried out in the recruitment

rules for various posts in CAT and the CAT (Staff) (Conditions of Service) Amendment Rules, 1988

separately. The pay of applicants was fixed provisionally on 12.9.2008 in the PB-2 with Grade Pay

of Rs.4200/-. However, in partial modification of order dated 12.9.2008, the pay of applicants was

re-fixed on 6.10.2008 and 7.10.2008 in PB-2 with Grade Pay of Rs.4800/- as per the

recommendations of the VI CPC in para 3.1.9 and CCS (RP) Rules, 2008. The pay bills were

prepared on the basis of these orders. However, the Pay and Accounts Officer took an objection, as

a result of which, an order was passed on 23.10.2008, which decided that the issue of grant o

Grade Pay to SOs/PSs of CAT at par with their counterparts in CSS/CSSS is under consideration

with the Ministry of Finance. Of late, as transpired from the reply of the respondents, considering

the CAT as a non-Secretariat Organization, the Ministry of Finance has taken a decision not to

accord the Grade Pay to the applicants at par with CSS/CSSS and to accord the Grade Pay on the

basis of the recommendations made in para 3.1.14 of the VI CPC Report.

14. However, by way of an ad interim order, respondents have been directed to grant the Grade

Pay of Rs.4800/- to the applicants initially and on completion of four years service in the grade to

Rs.5400/-, which has been complied with by re-fixing the pay of applicants but the arrears have

not been paid. The VI CPC in its recommendation in para 7.32.15 of its Report insofar as Assistantsand Stenographers who demanded parity with their counterparts has stated that as the

Commission has already recommended parity between the similarly placed posts of Secretariat and

Field Offices, no separate recommendation was found necessary. However, while making

recommendation in para 3.1.9 insofar as CSS pay scales are concerned, which were applied to the

PSs and equivalent in the services, including SOs, the Pay Bands prescribed to these employees

have been mutatis mutandis applied to the counterparts with the condition precedent that they

should have a historical parity. In AFHQSS, this has been applied and it also includes the

departments/organizations like MEA, CVC, UPSC, and inclusive of the CAT, for which no separaterecommendations were made. The extracted portion of para 3.1 .9 establishes the aforesaid.

15. While accepting the recommendations, Government of India, Ministry of Finance issued

Notification dated 29.8.2008. Definition clause 3 (7) provides revised pay structure in relation to

any post specified in column 2 of the First Schedule means the pay band and grade pay specified

against that post or the pay scale specified in column 5 & 6 thereof, unless a different revised

pay band and grade pay or pay scale is notified separately for that post. Accordingly, Section I o

the Notification in Part-B concerns revised pay scales for certain common categories of staff.

Section Officers/PS/equivalent under the heading Office Staff in the Secretariat have been allowed

PB-2 with Grade Pay of Rs.4800/- and PB-3 with Grade Pay of Rs.5400/- as per para 3.1.9 of the

report and those Organizations/Services, which have had a historical parity with CSS/CSSS, have

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also been accorded the same. However, in Part-II in case of the office staff working in Organizations

outside the Secretariat, the recommendations contained in para 3.1.14 have been applied. Neither

in the cadre of PS nor SO, the hierarchy shown exists in the CAT, which demonstrates non-

applicability of the aforesaid recommendations in para 3.1.14 insofar as CAT and its employees are

concerned, for which the recommendations, as referred to ibid would apply. ISSUES:

16. For proper adjudication of the case, the following issues may be framed:

i) Whether the CAT has jurisdiction in judicial review to interfere in the matter concerning parity o

pay on wrong fixation of pay by the Government, pursuant to the recommendations by the expert

body like Pay Commission?

ii) Whether the PSs/SOs in CAT have had historical parity with their counterparts in CSSS/CSS?

Whether the decision taken by the Ministry of Finance to apply para 3.1.14 of the recommendations

as accepted is legally justifiable?

ARGUMENTS:

17. Learned Senior Counsel Shri G.D. Gupta along with Shri S.K. Sinha, appearing for the applicants

would contend that insofar as preliminary objections are concerned, as the impugned orders passed

though may be a communication between the DoP&T and respondent No.3, yet its

implementation has given rise to filing of the O.A. because of wrong application of accepted

recommendations of VI CPC for grant of correct Pay Band structure and pay scales to the

applicants. As such a challenge when made on the basis of the illegality, such a challenge ismaintainable under law.

18. As regards merging of two categories of employees in single OA, it is stated by the learned

Senior Counsel that though the SOs/PSs belong to two different categories but the pay band

recommended and principle on which it is recommended, being identical in all respects, the cause o

action and the reliefs prayed for also being identical, there is no mis-joinder of parties.

19. As regards interference of the Tribunal in fixation of pay scale, it is stated that once the

accepted recommendations have not been implemented without any justifiable basis and theconsideration by Ministry of Finance to the recommendations of VI CPC on acceptance is irrelevant,

without any basis and logical reasoning, a case of malafide on violation of Articles 14 and 16 of the

Constitution of India is writ large on the face of it, as such the grievance of the applicants can be

agitated before the Tribunal in accordance with law. To substantiate, learned Senior Counsel has

relied upon the following case laws:

Bhikubhai Vithlabhai Patel & Ors. v. State of Gujarat & Anr., 2008 (4) SCC 144;

K.T. Veerappa & Ors. v. State of Karnataka & Ors., 2006 (4) SCALE 293;

Haryana State Minor Irrigation Tubewells Corporation v. G.S. Uppal & Ors., 2008 (6) SCALE

page 44;

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Official Liquidator v. Daya Nand & Ors. (2008 (10) SCC page 1;

Union of India v. Mohinder Singh (2008 (1) SLJ HC (Delhi) D.B. page 131;

Union of India & Ors. v. Dineshan K.K. (2008 (1) SCALE 74);

Nehru Yuva Kendra Sangathan v. Rajesh Mohan Shukla & Ors. (2007 (9) SCC page 230).

20. Learned counsel would contend that right from Third Central Pay Commission, once there has

been a parity of applicants with their counterparts in CSS/CSSS, which is recommended on

acceptance by the VI CPC in para 7.32.15 and 3.1.9, having been accepted by the Government

under the CCS (RP) Rules, 2008, denial of pay scale as recommended would infringe Article 39 (d)

of the Constitution of India and would amount to infringement to the constitutional doctrine of equal

pay for equal work.

21. Learned Senior Counsel would also contend that once the parity between the

Assistants/Stenographers Grade `C as also Private Secretaries of CAT and CSS/CSSS had already

been established and affirmed upto the level of the Honble Supreme Court, any decision arrived at

differently by the respondents on administrative side would amount to infiltrate into an arena

occupied by judicial pronouncements, which cannot be countenanced in law.

22. Learned counsel would further contend that insofar as applicability of para 3.1.14 is concerned,

the same does not apply to the employees of CAT and as conscious of the demand of the CAT staff,

including PSs and SOs cadre once in view of the historical parity in the past, no separate

recommendations have been made. Para 3.1.9 covers the claim of applicants and once this has beenaccepted and the condition precedent is satisfied, denial of correct fixation of pay scale is not apt in

law.

23. Learned counsel would lastly contend that earlier also even without amending the recruitment

rules, the pay scale at par with CSS/CSSS to Assistants/Stenographers Grade C was accorded, and

the same methodology should have been adopted by the respondents and being a model employer

when not done so, it is a case of arbitrariness and non-application of mind.

24. In the rejoinder, applicants have cited a decision of the Tribunal in OA-377/2006, decided on1.5.2007, whereby the NFSG has been accorded to the OS of CBI, which has been affirmed by the

Honble High Court in WP (C) No.7475/2007 & CM No.14234/2007 in Union of India &

Ors. v. S.C. Karmakar & Ors., decided on 10.10.2007. The Tribunal in OA 645/2007 has also

issued a direction, on 19.08.2008 for grant of NFSG to the SOs in R&AW of the Cabinet

Secretariat. The Government has implemented this order, which is evident from the order-dated

19.01.2009. Even in Armed Forces Headquarters, Non-Functional Selection Grade of Rs.8000-

13500 has been accorded, vide order dated 25.09.2008 (Annexure RJ-3). It may be relevant to

state here that Non-Functional Selection Grade was earlier restricted only to SOs/PSs of theCSS/CSSS, which has now been extended to SOs/PSs of other Organizations/Departments as well.

This, according to the applicants, is an invidious discrimination.
http://www.indiankanoon.org/doc/811652/http://www.indiankanoon.org/doc/24214/

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25. Learned Senior Counsel would also contend that once before the Ernakulam Bench there has

been admission to the effect that VI CPC has recommended the issue of parity of employees of CAT

with their counterparts in CSS/CSSS, the recommendation is deemed to be accepted and as such

Part B of CCS (RP) Rules, 2008 substantiates the aforesaid plea.

26. Learned counsel would contend that once the parity has been accepted, now taking a

somersault and a contradictory stand would amount to approbating and reprobating

simultaneously, which is impermissible in law.

27. On the other hand, Respondent No.3, i.e., Principal Registrar, CAT also filed a reply and

represented through learned counsel Shri D.S. Mahendru. They have not controverted the

historical parity and accepted the plea of applicants for grant of NFSG to them at par with

CSS/CSSS. It is also admitted that in the wake of an advice by DoP&T, they had allowed

Grade Pay of SOs/PSs of Rs.4800 in PB-2 and on completion of four years service Grade pay o

Rs.5400 in PB-3, but as the PAO had not cleared the bills on the advice of other official

respondents, the same was withdrawn. In a way, the case of applicants has been fully supported by

respondent No.3.

28. Respondent Nos. 1 and 2 are represented by Shri A.K. Bhardwaj, the learned Standing Counsel.

Their preliminary objection is that the orders impugned are inter-departmental communications,

which do not fall within the definition of orders under Section 19 of the Administrative Tribunals

Act, 1985. It is also stated that two different categories have been clubbed together in the OA,

which amounts to non-joinder. It is also stated that fixation of pay scale for the employees is the

prerogative of Government and cannot be interfered with by this Tribunal. The decisions inHiramony Sen v. Union of India, Civil Appeal No.7232 of 2003, Union of India v. Tarti Ranjan Das,

2004 (1) SCSLJ 47 and S.C. Chandra & Ors. v. State of Jharkhand & Ors., JT 2007 (1 ) SC

272 have been relied upon.

29. Learned counsel would also rely upon the decision of the Delhi High Court in CWP No.102/2001

Mohinder Pal Singh & Ors. v. Union of India & Ors, decided on 4.2.2002 whereby in the

wake of Customs and Excise Stenographers, their request for bringing them at par with CSSS was

turned down. Also relied upon is a decision of the Larger Bench of this Tribunal in M.V.R. Rao and

Ors. etc. etc. v. Union of India & Ors., 2002-2003 ATFBJ 260, to contend that the claim o

Stenographers and Assistants of subordinate and attached offices of Government of India in the pay

scale of Rs.1640-2900 at par with their counterparts in CSSS has been turned down.

30. Learned counsel would contend that specific pay scale recommended by VI CPC in case of office

staff working in the non-Secretariat Organization is as per para 3.1.14 of the Report. On

implementation, the Government modified the recommendations of the VI CPC as to NFSG to be

granted to the SOs/PSs of CSS/CSSS. At the same time, no modification was made to the

recommendations relating to AOs and Senior Private Secretaries in the non-SecretariatOrganizations.

31. Learned counsel would contend that VI CPC recommended the upgraded pay scale of Rs.7500-

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12000 (pre-revised) and NFSG Rs.8000-13500 after four years to the SOs/PSs in all Secretariat

offices, including CSS/non-participating Ministries but as CAT is a non-Secretariat Organization,

the pay of applicants is to be fixed differently.

32. Lastly, it is stated that the recommendations as to grant of parity with CSS has not been

accepted by the Ministry of Finance.

33. In the rejoinder, reiteration of the claim of applicants has been made by the learned Senior

Counsel.

34. We have carefully considered the rival contentions of the parties and perused the material on

record.

CASE-LAWS:

35. Fixation and grant of pay scales is the prerogative of executive and are left to the expert body

like Pay commission. Any recommendations made by the Pay Commission are subject to

acceptance or rejection. Unless the Government has accepted the recommendations of Pay

Commission, Court cannot proceed to direct the Government to accept and apply in a particular

case as held by the Apex Court in Union of India vs. Arun Jyoti Kundu, 2007 (2) SCC (L&S)

695.

36. In Tarit Ranjan Das (supra) with regard to Pay Commission conclusion and the jurisdiction o

the Court in judicial review, it is held that for the Court it is not open to sit in judgment as an appeal

over the conclusion of the Commission. Also held by a three Judge Bench of the Apex Court in M. P.Rural Agriculture Extension Association vs. State of M.P., 2004 SCC (L&S) 667 that Article 14

does not forbid reasonable classification and the Court cannot prescribe equal scales of pay for

different class of employees and when recommendations are made by a Pay Commission where the

evaluation of job has been made would not be interfered with to issue any writ in the nature o

mandamus. In State of Karnataka & Ors. vs. N. Parameshwarappa & Ors., 2005 SCC

(L&S) 120, with the following observations, it is ruled that the manner of differentiation sought

to be made by the Government for denying the benefit of revised pay scales when not rested on

any firm or definite legal stand is not tenable:-

7. We have carefully considered the submissions made on either side. In our view, the approach, the

method of dealing and the manner of differentiation sought to be made by the authorities of the

Government for denying the benefit of the revised scales of pay to the respondent category o

teachers alone does not seem to rest on any firm or definite legal stand. The benefit of coverage is

found extended to all the teachers in first-grade degree colleges, also called as composite colleges

and merely because such colleges have been permitted to have pre-university courses also, the

teachers should not be discriminated merely on the ground as to which teacher is assigned, at a

particular point of time to teach which class of students, though individual entitlement of each of the

teachers may depend upon the fulfilment of other requirements stipulated therefor. This is obvious,

in our view, from the omission of the State to bring forth positively and definite factual aspect for

such differential treatment not only before the High Court but also in this Court which necessitated

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this Court on 16-1-2001, 24-4-2001 and 26-7-2001 to issue directions calling for disclosure of the

specific stand and statement of facts to have an effective adjudication of the issue. We have been

taken through the three affidavits filed in this Court by the Principal Secretary, Education

Department, and as observed in the order of this Court on 24-4-2001 they seem to be more o

argumentative nature, than the presentation of a specific and relevant fact or criteria based upon

any concrete basis of fact and the affidavit filed thereafter also, except being in the nature of a mere

assertion does not contain that relevant detail for this Court to take a different view of facts thanthe one consistently arrived at by the learned Single Judge as well as the Division Bench of the High

Court. In that view of the matter and taking into account also to some extent the other factor such

as the injustice that may result in denying the benefits of the order to merely about 80 or so of the

teachers in the composite colleges in question imparting education for degree and PUC courses, we

do not consider it appropriate to disturb the findings on this aspect as to the coverage of such

teachers in composite colleges, for purposes of revised UGC scales of pay to them.

37. Also held in State of Punjab vs. Amar Nath Goyal, 2005 SCC (L&S) 910 that the final

recommendations of the Pay Commission are not binding but had to be accepted by the

Government and to implement it in accordance with law.

38. With the above trite position of law, what is discerned from the cumulative reading of the

binding precedent and the ratio as derived therein is that if a final recommendation is made by the

expert body like the Pay Commission and once it is accepted, the benefit of Pay Commission on the

doctrine of equal pay for equal work cannot be denied to the categories covered under the

recommendations. Any denial on flimsy, arbitrary and irrelevant grounds not only violates the

directive principles of State policy but it will also be malafide and violative of Article 14 of theConstitution of India.

39. The concept of parity in law has a longer history. Though equal pay for equal work may not be a

fundamental right guaranteed to the government servants but it is a directive principle of State

policy. Any act, which goes against the principle of equality laid down under Article 14 of the

Constitution of India, any differential treatment on the ground of belonging to different

departments without a reasonable differential criteria having reasonable nexus with the object

sought to be achieved such an act of the government being unconstitutional cannot be sustained in

judicial review.

40. In Randhir Singh vs. Union of India, AIR1982 (SC) 879, following dicta has been laid down:-

No doubt, equation of posts and equation of pay are matters primarily for the Executive

Government and expert bodies and not for the courts, but where all things are equal that is, 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. O

course, if officers of the same rank perform dissimilar functions and the powers, duties andresponsibilities of the posts held by them vary, such officers may not be heard to complain o

dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.

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xxxx xxxx xxxx xxxx

It is well known that there can be and there are different grades in a service, with varying

qualifications for, entry into a particular grade, the higher grade often being a promotional avenue

for officers of the lower grade. The higher qualifications for the higher grade, which may be either

academic qualifications or experience based on length of service, reasonably sustain the

classification of the officers into two grades with different scales of pay. The principle of equal pay

for work would be an abstract doctrine not attracting Art. 14 if sought to be applied to them, AIR

1962 SC 1139, Distinguished.

It is true that the principle of 'equal pay for equal work' is not expressly declared by our

Constitution to be a fundamental right. But it certainly is a Constitution goal.

Construing Articles 14 and 16 in the light of the Preamble and Art. 39 (d), we are of the view that

the principle 'Equal pay for Equal work' is deducible from those Articles and my be properly applied

to cases of unequal ''scales of pay based on no classification or irrational classification though thosedrawing the different scales of pay do identical work under the same employer.

41. In Mewa Ram Kanojia vs. All India Institute of Medical Sciences, ATJ 1989 (1) SC 654, the

following observations have been made:-

The doctrine of "Equal Pay for Equal Work" is not expressly declared a fundamental

right under the Constitution. But Article 39(d) read with Articles 14 and 16 the Constitution

declares the constitutional goal enjoining the State not to deny any person equality before law in

matters relating to employment including the scales of pay. Article 39(d) read with Articles 14 and16 of the Constitution enjoins the State that where all things are equal and person holding identical -

posts, performing identical and similar duties under the same employer should not be treated

differently in the matter of their pay. The doctrine of `Equal Pay for Equal Work' is not abstract

one, it is open to the State to prescribe different scales of pay for different posts having regard to

educational qualifications, duties and responsibilities of the post. The principle of 'Equal Pay for

Equal Work' is applicable when employees holding the same rank perform similar functions and

discharge similar duties and responsibilities are treated differently. The application of doctrine

would arise where employees are equal in every respect but they are denied equality in mattersrelating to the scale of pay.

Tinkering with pay scales is not generally a matter in the purview of the courts. This has a domino

effect and several equations are disturbed. It also leads to additional expenditure. Therefore, we

should be wary of venturing into this field of activity and refrain from disturbing these delicate

relationships. However, if the State itself disturbs these clear equations on extraneous

considerations, the court can interfere.

42. No doubt in Hiramony Sen (supra), it has been ruled that to increase the pay scale is entirely to

the Government and the judiciary must exercise self-restraint and not encroach into the executive

or legislative domain. It is also held in S.C. Chandra (supra) that fixation of pay and determination

of parity being a complex matter should be left to the expert body and grant of pay parity may

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result in adverse consequence. However, in Dinesh K.K. (supra), the following observations have

been made:-

9. The principle of equal pay for equal work has been considered, explained and applied in a catena

of decisions of this Court. The doctrine of equal pay for equal work was originally propounded as

part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. In Randhir

Singh Vs. Union of India & Ors. , a bench of three learned Judges of this Court had observed

that principle of equal pay for equal work is not a mere demagogic slogan but a constitutional goal,

capable of being attained through constitutional remedies and held that this principle had to be read

under Article 14 and 16 of the Constitution. This decision was affirmed by a Constitution Bench o

this Court in D.S. Nakara & Ors. Vs. Union of India . Thus, having regard to the constitutional

mandate of equality and inhibition against discrimination in Article 14 and 16, in service

jurisprudence, the doctrine of equal pay for equal work has assumed status of a fundamental right.

10. Initially, particularly in the early eighties, the said principle was being applied as an absolute

rule but realizing its cascading effect on other cadres, in subsequent decisions of this Court, a note o

caution was sounded that the principle of equal pay for equal work had no mathematical application

in every case of similar work. It has been observed that equation of posts and equation of pay

structure being complex matters are generally left to the Executive and expert bodies like the Pay

Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be

ordinarily disturbed by the Court as it may upset the balance and cause avoidable ripples in other

cadres as well. (Vide: Secretary, Finance Department & Ors. Vs. West Bengal Registration

Service Association & Ors. and State of Haryana & Anr. Vs. Haryana Civil Secretariat

Personal Staff Association . Nevertheless, it will not be correct to lay down as an absolute rule thatmerely because determination and granting of pay scales is the prerogative of the Executive, the

Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy i

he is unjustly treated by arbitrary State action or inaction, except to go on knocking at the doors o

the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants.

Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities

of the persons holding identical posts or ranks but they are treated differently merely because they

belong to different departments or the basis for classification of posts is ex-facie irrational, arbitrary

or unjust, it is open to the Court to intervene.

11. In State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors. , a three-Judge Bench o

this Court, dealing with the same principle, opined that principle of equal pay is dependent 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. The functions may be the same but the

responsibilities do make a difference. It was held that the judgment of administrative authorities,

concerning the responsibilities which attach to the post, and the degree of reliability expected of 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.

12. In State of Haryana & Anr. Vs. Tilak Raj & Ors. , it has been observed that the

principle of equal pay for equal work is not always easy to apply as there are inherent difficulties in

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comparing and evaluating the work of different persons in different organizations or even in the

same organisation. It has been reiterated that this is a concept which requires for its applicability,

complete and wholesale identity between a group of employees claiming identical pay scales and the

other group of employees who have already earned such pay scales. It has been emphasized that

the problem about equal pay cannot be translated into a mathematical formula.

13. Yet again in a recent decision in State of Haryana & Ors. Vs. Charanjit Singh & Ors. , a

Bench of three learned Judges, while affirming the view taken by this Court in the cases of State o

Haryana & Ors. Vs. Jasmer Singh & Ors. , Tilak Raj (supra), Orissa University o

Agriculture & Technlogy & Anr. Vs. Manoj K. Mohanty and Government of W.B. Vs.

Tarun Roy & Ors. has reiterated that the doctrine of equal pay for equal work is not an

abstract doctrine and is capable of being enforced in a court of law. Inter alia, observing that equal

pay must be for equal work of equal value and that the principle of equal pay for equal work has no

mathematical application in every case, it has been held that Article 14 permits reasonable

classification based on qualities or characteristics of persons recruited and grouped together, as

against those who are left out. Of course, the qualities or characteristics must have a reasonable

relation to the object sought to be achieved. Enumerating a number of factors which may not

warrant application of the principle of equal pay for equal work, it has been held that since the said

principle requires consideration of various dimensions of a given job, normally the applicability o

this principle must be left to be evaluated and determined by an expert body and the Court should

not interfere till it is satisfied that the necessary material on the basis whereof the claim is made is

available on record with necessary proof and that there is equal work and equal quality and all

other relevant factors are fulfilled.

20. Thus, the short question requiring our consideration is whether having admitted in their

affidavit referred to hereinabove, the apparent disparity and anomaly in the pay scales of Radio

Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate

apparent discriminatory differentiation in the pay scales because of the disparity in pre-revised and

revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay

Commission, irrespective of the identity of their powers, duties and responsibilities with other

paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part o

the Union of India that Radio Mechanics in other paramilitary forces were performing different ormore onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision o

the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the

Constitution.

43. In K.T. Veerappa (supra) as regards discrimination in the pay revision, following observations

have been made:-

13. He next contended that fixation of pay and parity in duties is the function of the executive and

financial capacity of the Government and the priority given to different types of posts under the

prevailing policies of the Government are also relevant factors. In support of this contention, he has

placed reliance on State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC

72 : 2002 SCC (L&S) 822 and Union of India v. S.B. Vohra(2004) 2 SCC 150 : 2004 SCC

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(L&S) 363. There is no dispute nor can there be any to the principle as settled in State o

Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72 : 2002 SCC (L&S)

822 that fixation of pay and determination of parity in duties is the function of the executive and

the scope of judicial review of administrative decision in this regard is very limited. However, it is

also equally well settled that the courts should interfere with administrative decisions pertaining to

pay fixation and pay parity when they find such a decision to be unreasonable, unjust and

prejudicial to a section of employees and taken in ignorance of material and relevant factors.

14. In S.B. Vohra case(2004) 2 SCC 150 : 2004 SCC (L&S) 363 this Court dealing with the

fixation of pay scales of officers of the High Court of Delhi (Assistant Registrars) has held that the

fixation of pay scale is within the exclusive domain of the Chief Justice, subject to approval o

President/Governor of the State and the matter should either be examined by an expert body or in

its absence by the Chief Justice and the Central/State Government should attend to the

suggestions of the Chief Justice with reasonable promptitude so as to satisfy the test of Article 14 o

the Constitution of India. Further, it is observed that financial implications vis-a-vis effect of grant

of a particular scale of pay may not always be a sufficient reason and differences should be mutually

discussed and tried to be solved.

15. In the present cases, in compliance with the judgment of the Division Bench of the High Court,

the Vice-Chancellor of the Mysore University constituted a committee headed by Shri Hiriyanna.

The said Committee, in its report dated 8-6-1991, has recorded the observations that the details o

the pay scales assigned by the Muddappa Committee, the Manjunath Committee, the Acharya

Committee, the Gopala Reddy Committee as also the pay scales given effect to from 1-1-1977 and

the claims of the appellants, on individual basis, could perhaps have been attended to by theUniversity itself after the Muddappa Committee made its recommendations. The Vice-Chancellor

and the Registrar of the Mysore University, while appearing before the Division Bench of the

Karnataka High Court in CCs Nos. 84 to 103 of 1992 in compliance with the order dated 16-4-1992

had brought to the notice of the Bench that the direction issued by the learned Single Judge in WAs

Nos. 2220-39 of 1989 dated 18-4-1990 and 29-1-1991 had already been complied with and arrears

of salary had been paid to the employees of the University, who filed the said writ petitions.

Thereafter, the respondent University submitted certain proposed amendments to the statute and

the same were sent to the State Government for approval. The State Government, for the reasonsbest known to it, till date has not been able to state any good reason as to why the amendment o

the statute as proposed by the University in regard to the fixation of the pay scales of its employees

could not have been approved by the competent authority. The Vice-Chancellor in its affidavit

dated 25-1-2000 filed in Writ Appeals Nos. 7007-55 of 1999 has categorically stated that the

respondent University, in its meeting held on 17-4-1999, decided to comply with the orders of the

Court and also to extend the benefit of the revised pay scale with effect from 1-1-1977 to those

employees who are eligible for such benefits and have not gone to the Court. This decision was

taken on the representation submitted by the appellants.

44. Further in G.S. Uppal (supra) on the pay parity involving the cardinal principle of equal pay for

equal work, the following observations have been made by the Apex Court:-

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22. It is not in dispute that a deputationist holds the post in a particular cadre office for the duration

he remains on deputation and is a part of that cadre. No material has been placed on record by the

appellants to show that the deputationists are appointed against only certain particular posts or

that they cannot be posted or transferred to the posts held by the respondents. In fact, it is an

admitted position that the posts are mutually inter-changeable. In this situation, it is reasonable to

infer that a deputationist performs the same duties as those performed by other persons working in

the cadre. It is also an admitted position that the qualifications laid down for recruitment in theCorporation are identical to those prescribed in the Departments of the Government. It is further

clear that the respondents have continued to work in the pay scale of Rs.2000-3500 w.e.f.

01.01.1986. As against this, their counter-parts in the Government and also the persons, who are

posted in the Corporation by way of deputation, would get the scale of Rs.3000-4500 on

completion of five years of service and are placed in the scale of Rs.4100-5300 (to the extent o

20% of the posts) on completion of 20 years of service. The respondents were obviously placed at a

disadvantageous position. The decision of the Government in rejecting the proposal of the Board o

Directors suffers from the vice of invidious discrimination and cannot be sustained because the verysame decision of the Board with regard to all other employees has since been accepted and

approved by the State Government. On the scrutiny of the material on record, it is clear that the

appellants did not produce any evidence on record to establish that the working conditions,

responsibilities and nature of duties, etc. of the respondents are different to their counter-parts

working in the same categories in the State Government, Boards and other Corporations, etc. and

also the persons who are working with the Corporation on deputation.

24. The plea of the appellants that the Corporation is running under losses and it cannot meet the

financial burden on account of revision of scales of pay has been rejected by the High Court and, in

our view, rightly so. Whatever may be the factual position, there appears to be no basis for the

action of the appellants in denying the claim of revision of pay scales to the respondents. If the

Government feels that the Corporation is running into losses, measures of economy, avoidance o

frequent writing off of dues, reduction of posts or repatriating deputationists may provide the

possible solution to the problem. Be that as it may, such a contention may not be available to the

appellants in the light of the principle enunciated by this Court in M.M.R. Khan v. Union of India

[1990 Supp. SCC 191] and Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union [(2000) 4

SCC 245]. However, so long as the posts do exist and are manned, there appears to be no

justification for granting the respondents a scale of pay lower than that sanctioned for those

employees who are brought on deputation. In fact, the sequence of events, discussed above, clearly

shows that the employees of the Corporation have been treated at par with those in Government at

the time of revision of scales of pay on every occasion. It is an admitted position that the scales o

pay were initially revised w.e.f. April 1, 1979 and thereafter on January 1, 1986. On both these

occasions, the pay scales of the employees of the Corporation were treated and equated at par with

those in Government. It is thus an established fact that both were similarly situated. Thereafter,

nothing appears to have happened which may justify the differential treatment. Thus, theCorporation cannot put forth financial loss as a ground only with regard to a limited category o

employees. It cannot be said that the Corporation is financially sound insofar granting of revised

pay scales to other employees, but finds financial constraints only when it comes to dealing with the

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respondents, who are similarly placed in the same category. Having regard to the well reasoned

judgment of the Division Bench upholding the judgment and order of the learned Single Judge, we

are of the view that the impugned judgment warrants no interference inasmuch as no illegality,

infirmity or error of jurisdiction could be shown before us.

45. In Rajesh Mohan Shukla (supra), it is held that there is no justification for denial of equal pay for

equal work when the only difference is the source of recruitment. The High Court of Delhi in W.P.

(C) No. 13106/2005 in Union of India & Ors. vs. Mohinder Singh & Ors., decided on

18.05.2006, upheld the decision of the Tribunal on the basis of principle of equal pay for equal work

and benefits have been granted to Draftsmen Grade-III.

46. In Mohinder Pal Singh (supra), the claim of Stenographer Grade-C in Ministry of External

Affairs at par with CSSS has been turned down on the basis of 5th CPC finding out difference in the

volume of work.

47. With the above backdrop of the trite position of law, the issues raised are to be examined.

DISCUSSION AND CONCLUSION:

48. The word historical has been defined in Concise Oxford Dictionary, Tenth Edition (Revised) as

belonging to or set in the past. Historical parity is the parity or equality maintained in the context o

the present Original Application between the pay scales of PSs/SOs with that of their counterparts

in CSS/CSSS in the wake of the recommendations by several Pay Commissions. A historical parity

would be when it is established as an obligation to one who is claiming parity of pay scales with the

class or category had been situated in the past at par in the equivalent pay scale with thecounterparts with whom such parity is claimed. It is no more res integra as transpired from the

Chart, which is not disputed by the respondents, that earlier in the cadre of Stenographers Grade

C/Assistants in the Fourth Central Pay Commission, the scale of pay was Rs.1400-2600, which had

been upgraded in case of CSS/CSSS to Rs. 1640-2900 by issuing an O.M. but it has not been

effected in CAT. The litigation resulted in an order passed by the DOP&T in pursuance of the

direction of the Tribunal in OA No. 2865/1991 and CCP No. 262/1993 wherein it has been decided

to grant pay scale to the counterparts CAT employees of Rs. 1640-2900 even without amending

the recruitment rules. However, subsequently the rules were amended. In S.K. Sareen vs. Union oIndia & Ors. (OA No. 777/1992 decided on 20.12.1999), the pay scale of Rs.3000-4500 from

01.01.1986 was sought on the principle ofequal pay for equal workat par with their counterparts in

CSSS. When order was affirmed by the Delhi High Court on 19.04.2002 and SLP against which was

also turned down, in CP 405/2003, an order was passed on 09.02.2005 upgrading the 16 posts o

Private Secretaries to Principal Private Secretaries and one post of PPS to Senior Principal Private

Secretary in the relevant pay scales at par with CSSS. This clearly shows that the parity in the pay

scale has been maintained in the CAT relating to two categories upto the stage of Fourth CPC.

49. The only anomaly which had occurred on account of grant of pay scale of Rs. 1640-2900 has

been set right on a judicial dicta which holds the field and was complied with.

50. In Fifth CPC the PSs/SOs were recommended the pay scale of Rs. 6500-10500 and also the

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counterparts in CSS/CSSS. However, the NFSG scale of Rs. 8000-13500 to the merged grade of A

& B of PSs of CSSS has been allowed notionally w.e.f. 01.01.1996 and actually w.e.f.

03.10.2003. The applicants have raised this issue before the Ernakulam Bench where the CP

converted into Misc. Application, an affidavit filed by the Government clearly indicates that the

Commission has examined and recommended the issue of parity of employees of CAT with their

counterparts in CSS/CSSS cadre in para 7.32.15 of the Report of the 6th Pay Commission. It is

further reiterated on acceptance by the DOP&T vide letter dated 27.03.2008 where theparity, recommended by the 6th CPC in para 3.1.9 and 7.32.15 of the Report, with counterparts in

CSS/CSSS has been accepted.

51. In the above view of the matter regarding the parity of pay scale in 5th CPC in the wake of an

admitted fact of the historical parity between the CSS/CSSS with counterparts in CAT, a final

decision is awaited for grant of NFSG grade of Rs.8000-13500 notionally and actually to the

employees of the Tribunal. However, as this is not the issue before us, except reiterating in law

their demand, the issue of historical parity between the PSs/SOs of CAT and on the other hand

SOs/PSs of CSS/CSSS is no more res integra and once accepted by the government and

recommended by 6th CPC, the aforesaid recommendations contained in paragraphs 3.1.9 and

7.32.15 having been accepted by the Government, the stand now taken by the respondents that

what is applicable to the applicants in the present OA is para 3.1 .14 of the recommendations of the

6th CPC is absolutely misconceived. It is pertinent to note that this para applies to non-secretariat

offices and to those for whom there is no historical parity with CSS/CSSS and in favour of whom a

criteria of recommendations has not been laid down in the 6th CPC recommendations. On a

juxtaposition, 6th CPC while making its recommendations in para 7.32.15 as to cadre structure o

higher pay scale in CAT reiterated that Assistants and Stenographers in CAT have demanded pay

scales at par with their counterparts in CSS/CSSS and as the Commission has already

recommended parity between the similarly placed posts in field offices and Secretariat, no separate

recommendation has been made. The only logical and rationale inference to be drawn is that

whatever has been recommended in para 3.1.9 is to be applied mutatis mutandis to the employees

of the CAT on the condition precedent being fulfilled, which is establishment of historical parity with

CSS/CSSS. The recommendations contained in para 3.1.14 of 6th CPC Report where the field

organizations and non-secretariat organizations have been recommended the pay scale are not at

all applicable to the employees of the CAT, as a specific recommendation made in paragraph 7.32.15

Commission having recommended parity between the similarly placed posts in field offices and

secretariat the instant demand has been fulfilled. It is trite that when there is a specific

recommendation made as transpired from para 3.1.9 as to parity with pay scale of CSS/CSSS

structure the asterisk (*) clearly shows that even to the non-secretariat offices and organizations

being carved out as an exception to the recommendations contained in para 3.1.14 is that those

organizations which are not exhaustive but includes departments and organization which have had

a historical parity the pay scale would be at par with CSS/CSSS. It is trite that under the principle

of interpretation that in case of interpretation of a service rule, if two views are possible then therule has to be interpreted with the practice followed in the department for long time as held in

Shailendra Dania & Ors. vs. S.P. Dubey & Ors., 2007 (2) SCC (L&S) 202, a marginal

note with a provision is an integral part of it and being an exception in the instant case as an

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asterisk (*) to para 3.1.9, the same has applicability to all field offices and non-secretariat

organizations, all departments where there has been historical parity with the pay scale of their

counterparts in CSS/CSSS. We cannot read para 3.1.14 in isolation of para 3.1.9 and 7.32.15 where

both the recommendations having been accepted by the Government, only applying para 3.1.14 to

the exclusion of 3.1.9 would amount to approbating and reprobating simultaneously, as a conscious

and well taken decision when transformed into an affidavit of the Government before the

Ernakulam Bench, an admission to acceptance of parity and acceptance also of established parity asa historical background leaves no doubt in our mind that there has been a historical parity o

SOs/PSs in CAT with their counterparts in CSS/CSSS. They cannot now, as a contradictory stand,

deny the same as it would not only be unfair but also is a misuse of their discretionary power which

is to be exercised by an administrative authority judiciously after balancing all the relevant factors

as ruled by the Apex Court in Union of India vs. Kuldip Singh, 2004 (2) SCC 590. A discretion

vested in the administrative authority is neither unfettered nor absolute. It is to be exercised in

consonance with the rights of a government employee and Constitution of India. A consideration

worth in law is one, which thinks over on active application of mind all the relevant considerationand factors as ruled by the Apex Court in Bhikubhai Patel (supra). As a model employer just to

deprive the applicants their rights and legitimate dues without any justifiable reasons and on

misreading of their CSSS Revised Pay Rules, 2008, irrelevant considerations have been grounded

to deprive the applicants the requisite pay scales on established historical parity with those of their

counterparts in CSS/CSSS. Learned counsel for the respondents relied upon the decision of High

Court in Mohinder Pal Singh (supra) and in M.V.R. Rao (supra) by a Larger Bench of this Tribunal.

In this regard it is pertinent to note that this issue of parity of CAT employees with CSS/CSSS has

been dealt with by this Tribunal in S.K. Sareens case (supra) which, on affirmation from the HighCourt, and also rejection of SLP, on implementation by the respondents not only attained finality

but also is an admission to the effect by the respondents that the SOs/PSs of CAT are maintaining

historical parity with those of their counterparts in CSS/CSSS. It is worthwhile to note that there is

even a finding recorded that the duties and functional requirements of the CAT employees are

more onerous than their counterparts in CSS/CSSS, which has not been overturned by any dicta. A

judicial dicta when holds the field and the arena in which it operates, it is impermissible in law to the

administrative authorities to infiltrate it as ruled by the Apex Court in Anil Rattan Sarkar v. State

of West Bengal, 2001 (5) SCC 327. The Apex Court has also ruled in Dhampur Sugar Mill v. State o

Uttranchal, 2007 (11) SCALE 374 that when a public authority acts with oblique motive, bad faith

or takes into account extraneous or irrelevant consideration, the exercise has to be held as not in

accordance with law.

52. In the above view of the matter the contention that the Government has not accepted the claim

of the applicants as to the parity with CSS/CSSS is founded on a ground and justification, which has

been misconceived by them and wrongly applied. Such a consideration cannot be a consideration

worth in law.

53. In the matter of pay scale equation though the prerogative lies with the Government but any

action taken especially when such a recommendation covers the claim of the applicants and

accepted by the Government, no reasonable justification has come forth, which would deprive the
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applicants the grant of identical pay scale. Had there been a case where recommendations having

been accepted by the Government in its discretion, the applicants would have no indefeasible right

to claim the pay scale. One of the points raised is financial constraint in accord of benefits, which as

a trite law, has not been found to be a valid defence by the Government, as a right of an employee

cannot be defeated on this technical issue. In the matter of parity of pay scale, financial constraint

cannot be a defence as ruled by the Apex Court in Union of India vs. Atonomic Engery Workers

Staff Union, 2005 (1) ATJ (HC) (Bombay) 92.

54. As regards opening of flood gate litigation and administrative chaos, it is held to be no ground to

take away the valuable right of a person under the Constitution by the Apex Court in Coal India Ltd

vs. Saroj Kumar Mishra, 2008 (2) SCC (L&S) 321. In G.S. Uppal (supra), financial constraints

have not been found to be good ground on established implementation of doctrine of equal pay for

equal work.

55. A discriminatory and contradictory stand is antithesis to the fairness in law. As the issue o

NFSG of RS.8000-13500 to the OSs in case of CBI, a non-secretariat office at par with CSS/CSSS,

decision in S.C. Karmakar (supra) was affirmed by the High Court of Delhi. Even the decision of the

Tribunal in the case of R&AW Department has been implemented by the Government by

grant of pay scale/NFSG to the concerned SOs, by order dated 19.01.2009 and also the SOs/PSs in

AFHQ were allowed the pay scale on 25.09.2008. This clearly shows that the 6th CPC

recommendations in para 3.1.9 have been adhered to not only in the case of SOs/PSs of the

CSS/CSSS but also in the case of SO/PSs in other Organisations, who have had historical parity. As

such, exclusion of the CAT employees and not meeting out the same treatment in respect of Grade

Pay without any intelligible differentia having reasonable nexus with the object sought to beachieved, is an unreasonable classification and an invidious discrimination, which cannot be

countenanced in the wake of Article 14 of the Constitution of India.

56. In the light of the discussions made above, issue no. (i) framed by us is answered to the extent

that as in the matter of grant of pay scale there has been an unreasonableness and accepted

recommendations having not been followed and applied to the applicants at par with their

counterparts in CSS/CSSS, an exception has been carved out as per the trite law to interfere with

the decision of the Government in judicial review by us. As far as the issue No. (ii) is concerned, we

have already concluded that the SOs/PSs of CAT have always had historical parity with their

counterparts in CSS/CSSS.

Accordingly the issue no. (iii) is answered on the basis of the above observations that such an

application is misconceived, misplaced and contrary to law.

57. Resultantly, for the foregoing reasons, we have no hesitation to hold that the decision of the

Government to deny Grade Pay of Rs.4800/- in PB-2 to the PSs and SOs of the CAT initially and

Grade Pay of Rs.5400/- in PB-3 on completion of four years service in the grade is arbitrary, illegaland violative of Articles 14 and 16 of the Constitution of India, since they are having established

historical parity with their counterparts in CSS/CSSS and, therefore, applicants are entitled to

these Pay Bands with Grade Pay. The interim order is made absolute. The difference in arrears o

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pay shall be disbursed to the applicants within a period of one month from the date of receipt of a

copy of this order. The OA is accordingly allowed to the aforesaid extent. No costs.

58. Consequently, MA for joining together is also allowed.

(Dr. Veena Chhotray) (Shanker Raju)

Member (A) Member (J)

/Sunil/

OA 164 2009

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