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The Administrative Tribunals Act, 1985
The Code Of Civil Procedure (Amendment) Act, 1956
Section 8 in The Administrative Tribunals Act, 1985
Section 12 in The Administrative Tribunals Act, 1985
Section 4 in The Administrative Tribunals Act, 1985

Central Administrative Tribunal - Ernakulam
K.K.Jose vs Union Of India, Represented By The ... on 6 February, 2013

ERNAKULAM BENCH

OA No.532/2011

Wednesday, this the 6th day of February 2013.

CORAM

HON'BLE Dr.K.B.S.RAJAN, JUDICIAL MEMBER

HON'BLE Ms. K.NOORJEHAN, ADMINISTRATIVE MEMBER

1. K.K.Jose

Private Secretary

Central Administrative Tribunal

Ernakulam Bench,

Kaloor, Cohin-17.

2. T.R.Sivakumar

Private Secretary

Central Administrative Tribunal

Ernakulam Bench,

Kaloor, Cohin-17.

3. C.V.Ramesan

Private Secretary

Central Administrative Tribunal

Ernakulam Bench,

Kaloor, Cohin-17. Applicants

[By Advocate:Mr.S.Radhakrishnan)

Versus

1. Union of India, represented by the Secretary Department of Personnel & Training

Ministry of Personnel, Public Grievances & Pension North Block, New Delhi-110001.

2. The Secretary

Ministry of Finance

North Block, New Delhi-11001

3. The Principal Registrar

Central Administrative Tribunal

Principal Bench, 61/35, Copernicus Marg

New Delhi-110001. Respondents [By Advocate: Mr.A.D.Raveendra Prasad, ACGSC)

This Original Application having been heard on 17th January 2013, this Tribunal on 6th February 2013 delivered the following:

O R D E R

HON'BLE DR.K.B.S.RAJAN, JUDICIAL MEMBER

The three applicants, holding the post of private secretary in the Central

administrative Tribunal, have prayed for the following reliefs: -

(i) Call for the records connected with the case. (ii)Declare that the Private Secretaries of CAT had already been equated with the Private Secretary of CSS by the Principal Bench of the CAT and it was upheld by the Apex Court.

(iii)Declare that the PS of the CAT are entitled to get the same treatment as the PS of the CSSS.

(iv)Declare that each Hon'ble Member of the CAT is entitled to get one Principal Private Secretary and one Stenographer Gr.C, as per Annexure A3. (v)Direct the respondents to promote eligible and qualified PS to the post of Principal Private Secretary as has been done in the case of CSSS by upgradation of the post. (vi)Direct the respondents to extend the scheme of upgradation of post of PS in CSSS to the post of Principal Private Secretary in CAT on the same terms and conditions. (vii)Pass such other relief as are deemed fit, just, fair and proper in the facts and circumstances of the case.

2. The case of the applicants is that the applicants are functioning as

Private Secretaries in the Central Administrative Tribunal and by virtue of

various judicial orders, their cadre has always been made comparable with that

of the Central Secretariat Stenographers Services (CSSS). In the CSSS Cadre,

the number of posts of Principal Private Secretary has been made

corresponding to the number of posts of Secretaries/Addl. Secretaries and a

similar treatment was extended to the Stenographic cadre of the C.A.T. also

when 16 posts of Private Secretary were upgraded to Principal Private

Secretaries to be attached to each of the Vice Chairman whose status was

comparable to that of the High Court Judge. After amendment had been made

in 2007, abolishing the post of Vice Chairman and elevating the status of

Members of the Tribunal to that of a high Court Judge, each of the member of

the Tribunal became entitled to the services of the Principal Private Secretaries. Thus, it was incumbent upon the respondents to upgrade requisite number of

Private Secretaries to that of Principal Private Secretaries. This not having

been done despite due representations, the applicants came up before the

Tribunal seeking the reliefs as extracted above.

3. The case of the respondents is that the applicants cannot claim any

parity with the CSSS as the Rules for their cadre are different. Again, the Apex

Court in the case of Unnimenon rejected the claim of such parity being claimed

in respect of Accounts Officers of the C.A.T. Further, a Committee has been

formed to consider the requirement of additional Principal Private Secretaries.

4. Counsel for the applicants argued that the case has to be analyzed from

two different angles:-

(a) The requirement of a Principal Private Secretary to each of

the Hon'ble Members of the Tribunal by virtue of their status.

(b) The comparable status of the Central Secretariat

Stenographers Service with that of the Stenographic grade in

the C.A.T.

5. As regards (a) above, there cannot be any doubt that the status of a

Member of the C.A.T. having been equated with that of a High Court Judge,

coupled with the fact that it is the Secretary to the Central Government with

two years service or equivalent who would be eligible to be appointed as

Member in the Central Administrative Tribunal, each Member should be

entitled to a Principal Private Secretary.

6. As regards (b) above, the respondents have all along been treating the

stenographic services in the C.A.T. at par with that of the C.S.S.S. of the

Central Secretariat. Orders at Annexures A-2 would go to show that the

upgradation of 16 posts of Private Secretary to Principal Private Secretary was on account of the fact that there were then 16 Vice Chairmen in the Tribunal

and each of them having been treated as equivalent to High Court

Judge/Secretary to the Government of India as held by the Tribunal in the case

of S.K. Sareen vs Union of India (OA No. 777 of 1992) which order has been

upheld by the High Court of Delhi and the Apex Court. Today, the post of

Vice Chairman has been done away with and the members have the status of

the High Court Judges as per the amended Act. As such there is absolutely no

justification in the respondent's inaction in upgrading the post of Private

Secretary to Principal Private Secretary to make the total number of Principal

Private Secretaries equal to the number of Members.

7. Counsel for the respondents, on the other hand, argued that of the three

applicants, one has already been promoted as Deputy Registrar and one more

is likely to be promoted. Further, a committee has been set up to study the

entire case and some time is required in this regard.

8. Arguments were heard and documents perused.

9. The Central Administrative Tribunal is a statutory body constituted

under the provisions of the Administrative Tribunals Act,1985 and the

conditions of services of both the Chairman, Vice Chairmen and Members of

the Tribunal on the one hand and the staff members of the Tribunal on the

other are all contained in the attendant Rules thereto. The Principal Seat of the

Tribunal (called the Principal Bench) is situated at Delhi, while in all there are

17 Benches all over India.

10. Earlier, the constitution of the Tribunal had a three tier system - (a)

Chairman (b) Vice Chairman and (c) Members (Judicial and Administrative).

Certain qualifications have been prescribed for the posts and the same are as

under:-

"6. Qualifications for appointment as Chairman, Vice Chairman or other Members:-(1) A person shall not be qualified for appointment as the Chairman unless he-

(a) is, or has been, a Judge of a High Court; or (b) has, for at least two years, held the office of Vice-Chairman [ ]; (c) Omitted.

(2) A person shall not be qualified for appointment as the Vice-Chairman unless he-

(a) is, or has been, {or is qualified to be,} a Judge of a High Court; or

(b) has, at least two years, held the post of a Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Secretary to the Government of India; or

[(bb)has, for at least five years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of an Additional Secretary to the Government of India; or]

(c) has, for a period of not less than three years, held office as [a Judicial Member or an Administrative Member].

[(3) A person shall not be qualified for appointment as a Judicial Member unless he-

(a) is, or has been, or is qualified to be, a Judge of a High Court; or (b) has been a member of the Indian Legal Service and has held a post in Grade I of that Service for at least three years.

(3-A) A person shall not be qualified for appointment as an Administrative Member unless he-

(a) has, for at least two years, held the post of an Additional Secretary to the Government of India or any other post under the Central or a State Government carrying a sc ale of pay which is not less than that of an Additional Secretary to the Government of India; or (b) has, for at least three years, held the post of a Jointn Secretary to the Government of India or any other post under the Central or a State Government carrying a scale of pay which is not less than that of a Joint Secretary to the Government of India, and shall, in either case, have adequate administrative experience.].

(4)[Subject to the provisions of sub-section 97), the Chairman], Vice Chairman and every other Member of the Central Administrative Tribunal shall be appointed by the President..

(5) [Subject to the provisions of sub-section (7), the Chairman,] Vice- Chairman and every other Member of an Administrative Tribunal for State shall be appointed by the Present after consultation with the Governor of the concerned State.

(6)The Chairman, Vice Chairman and every other Member of a Joint Administrative Tribunal shall, subject to the terms of the agreement between the participating State Governments published under sub-section (3) of Section 4, (and subject to the provisions of sub-section (7) be appointed by the president after consultation with the Governor of the concerned States.

(7) No appointment of a person possessing the qualifications specified in this section as the Chairman, a Vice Chairman or a Member shall be made except after consultation with the chief Justice of India.] EXPLANATION-In computing for the purposes of this Section, the period during which a person has held any post under the central or a State Government, there shall be included the period during which he has held any other post under the Central or a State Government (including an office under this Act0 carrying the same scale of pay as that of the first mentioned post or a higher scale of pay."

11. The secretarial assistance to the Chairman, Vice Chairman (till such

posts existed) and members of the Tribunal is provided by recruitment of

persons in the secretarial Cadre. The said secretarial Cadre consists of (a) Sr.

Principal Secretary; (b) Principal Private Secretary; (c) Private Secretary; (d)

Steno Grade C/Court Master and (e) Steno Grade D.

12. The Principal Private Secretaries of which we are concerned in this O.A,

are governed by the Central Administrative Tribunal (Principal Private

Secretary) Recruitment Rules, 1996 as amended by the 1998 Rules. The

Schedule to the 1996 Rules reads as under:-

Schedule

Name of post No.of posts Classifi-cation Scale of pay Whether Whether benefit Age limit for selection post or of added years of direct recruits non-selection service admissible

under Rule 30 of

the General Civil

Service (Pension)

Rules, 1973

1 2 3 4 5 6 7 Principal Private 1 General CentralRs.2000-100- Selection Not applicable Not applicable Secretary Service Group 'A'3500-125-4500 (1996) Gazetted -

Ministerial

8 9 10 11 12 13 14

Educational and Whether age and Period of Method of In case of Composition of Circumstances other edu.quafications probation, if any. recruitment recruitment by departmental in which UPSC qualifications prescribed for whether by direct promotion/deput promotion has to be required for direct recruits recruitment or by ation committee consulted in direct recruits will apply in the deputation/transf taking case of promo er and recruitment tees percentage of vacancies to be

filled by various

methods

Not applicable le Not applicable Not applicable By promotion Private Secretary Group-A, DPC in the scale of pay consisting of (i)

of Rs.2000-50- Chairman, CAT

2300-EB-75- or a Vice

3300-100-3500 Chairman of the

with at least 8 Tribunal to be

years regular nominated by the

service in the Chairman, CAT

grade Chairman

(ii) Member,

CAT to be

nominated by the

Chairman -

Member

(iii) Registrar,

Principal Bench

or any other

Registrar/Joint

Registrar to be

nominated by the

Chairman -

Member

13. Of the above, the Senior Principal Private Secretary is attached to the

office of the Chairman, and along with him, Principal Private Secretary and

Steno Grade C have also been attached to the office of the Chairman. By

Annexure A-2 order dated 9th February, 2005, in all sixteen posts of Private

Secretaries were upgraded to Principal Private Secretaries, attached to the Vice

Chairman of the Tribunal. The number of Principal Private Secretaries were

comparable to the total number of sanctioned posts of Vice Chairmen at that

point of time. And, at that time, the status of Vice Chairman was equated with

that of a High Court Judge.

14. In 2007 amendment to the A.T. Act, 1985 has been passed which inter

alia made the following provisions.

THE ADMINISTRATIVE TRIBUNALS (AMENDMENT) ACT, 2006

NO. 1 OF 2007 [ 29th December, 2006]

An Act further to amend the Administrative Tribunals Act, 1985.

BE it enacted by Parliament in the Fifty- seventh Year of the Republic of India as follows:-

Short title and commencement.-

1 (1) This Act may be called the Administrative Tribunals (Amendment) Act, 2006 .

(2) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint and different dates may be appointed for different provisions of this Act.

Amendment of section 3.-

2. In section 3 of the Administrative Tribunals Act, 1985 (hereinafter referred to as the principal Act),-

(I) in clause (i), for the words" the Chairman or a Vice- Chairman", the words" the Chairman" shall be substituted.

(II) in clause (ia), the words" and a Vice- Chairman" shall be omitted.

(III) for clause (u), the following clause shall be substituted, namely:-' (u)" Vice- Chairman" means a Member who has been authorized by the appropriate Government to perform administrative functions at each of the places where Benches of the Tribunal have been set up.'.

Amendment of section 4.-

3. In section 4 of the principal Act, in sub- section (4), for the words" Chairman, Vice- Chairman and other Members", the words" Chairman and other Members" shall be substituted.

Amendment of section 5.-

4, In section 5 of the principal Act,-

(a) in sub- section (1), for the words" a Chairman and such number of Vice- Chairman and Judicial and Administrative Members", the words" a Chairman and such number of Judicial and Administrative Members" shall be substituted;

(b) in sub- section (4),-

(i) in clause (b), for the words" the Vice- Chairman or other Members", the words" a Member" shall be substituted;

(ii) in clause (c),-

(I) For the words" the Vice- Chairman or the Judicial Member", the words" the Judicial Member" shall be substituted;

(II) for the words" the Vice- Chairman or, as the case may be, the Judicial Member or the Administrative Member", the words" the Judicial Member or the Administrative Member, as the case may be" shall be substituted.

Substitution of new section for section 6.-

5. For section 6 of the principal Act, the following section shall be substituted, namely:-"

6. Qualifications for appointment as Chairman, Vice- Chairman and other members.- (1) A person shall not be qualified for appointment as the Chairman unless he is, or has been, a Judge of a High Court: Provided that a person appointed as Vice- Chairman before the commencement of this Act shall be qualified for appointment as Chairman if such person has held the office of the Vice- Chairman at least for a period of two years.

(2) A person shall not be qualified for appointment,-

(a) as an Administrative Member, unless he has held for at least two years the post of Secretary to the Government of India or any other post under the Central or State Government and carrying the scale of pay which is not less than that of a Secretary to the Government of India for at least two years or held a post of Additional Secretary to the Government of India for at least five years or any other post under the Central or State Government carrying the scale of pay which is not less than that of Additional Secretary to the Government of India at least for a period of five years: Provided that the officers belonging to All- India services who were or are on Central deputation to a lower post shall be deemed to have held the post of Secretary or Additional Secretary, as the case may be, from the date such officers were granted proforma promotion or actual promotion whichever is earlier to the level of Secretary or Additional Secretary, as the case may be, and the period spent on Central deputation after such date shall count for qualifying service for the purposes of this clause; (b) as a Judicial Member, unless he is or qualified to be a Judge of a High Court or he has for at least two years held the post of a Secretary to the Government of India in the Department of Legal Affairs or the legislative department including Member- Secretary, Law Commission of India or held a post of Additional Secretary to the Government of India in the Department of Legal Affairs and Legislative Department at least for a period of five years.

(3) The Chairman and every other Member of the Central Administrative Tribunal shall be appointed after consultation with the Chief Justice of India by the President.

(4) Subject to the provision of sub- section (3), the Chairman and every other Member of an Administrative Tribunal for a State shall be appointed by the President after consultation with the Governor of the concerned State.

(5) The Chairman and every other Member of a Joint Administrative Tribunal shall, subject to the provisions of sub- section (3) and subject to the terms of the agreement between the participating State Governments published under sub- section (3) of section 4 of the principal Act, be appointed by the President after consultation with the Governors of the concerned States. Explanation.- In computing for the purpose of this section, the period during which a person has held any post under the Central or State Government, there shall be included the period during which he has held any other post under the Central or State Government (including an office under this Act) carrying the same scale of pay as that of first mentioned post on a higher scale of pay.''.

Amendment of section 7.-

6. In section 7 of the principal Act, for the words" Vice- Chairman or, as the case may be, such one of the Vice- Chairman", the words" such one of the Members" shall be substituted.

Substitution of new section for section 8.-

7. For section 8 of the principal Act, the following section shall be substituted, namely:-

" 8. Term of office.-

(1) The Chairman shall hold office as such for a term of five years from the date on which he enters upon his office: Provided that no Chairman shall hold office as such after he has attained the age of sixty- eight years.

(2) A Member shall hold office as such for a term of five years from the date on which he enters upon his office extendable by one more term of five years: Provided that no Member shall hold office as such after he has attained the age of sixty- five years.

(3) The conditions of service of Chairman and Members shall be the same as applicable to Judges of the High Court.".

Amendment of section 9.-

8. In section 9 of the principal Act, the word" Vice- Chairman" wherever it occurs shall be omitted.

Amendment of section 10.-

9. In section 10 of the principal Act,-

(i) the word" Vice- Chairman" wherever it occurs shall be omitted;

(ii) after the proviso, the following proviso shall be inserted, namely:-" Provided further that where a serving Government officer is appointed as a Member, he shall be deemed to have retired from the service to which he belonged on the date on which he assumed the charge of the Member but his subsequent service as Member shall, at his option, be reckoned as a post- retirement re- employment counting for pension and other retirement benefits in the service to which he belonged.".

Insertion of new section 10A.-

10. After section 10 of the principal Act, the following section shall be inserted, namely:-

" 10A. Saving terms and conditions of service of Vice- Chairman.- The Chairman, Vice- Chairman and Member of a Tribunal appointed before the commencement of the Administrative Tribunals (Amendment) Act, 2006 shall continue to be governed by the provisions of the Act, and the rules made thereunder as if the Administrative Tribunals (Amendment) Act, 2006 had not come into force:

Provided that, however, such Chairman and the Members appointed before the coming into force of Administrative Tribunals (Amendment) Act, 2006 , may on completion of their term or attainment of the age of sixty- five or sixty- two years, as the case may be, whichever is earlier may, if eligible in terms of section 8 as amended by the Administrative Tribunals (Amendment) Act, 2006 be considered for a fresh appointment in accordance with the selection procedure laid down for such appointments subject to the condition that the total term in office of the Chairman shall not exceed five years and that of the Members, ten years.".

Amendment of section 11.-

11. In section 11 of the principal Act,-

(I) in clause (b), the words" Vice- Chairman or" shall be omitted;

(II) clause (c) and clause (d) shall be omitted; and

(III) in clause (e), the words" or Vice- Chairman" at both the places where they occur shall be omitted:

(IV) in clause (f), the word" Vice- Chairman" at both the places where they occur shall omitted.

Substitution of new section for section 12.-

Financial and administrative powers of the Chairman.-

12. For section 12 of the principal Act, the following section shall be substituted, namely:-

" 12. (1) The Chairman shall exercise such financial and administrative powers over the Benches as may be vested in him under the rules made by the appropriate Government.

(2) The appropriate Government may designate one or more Members to be the Vice- Chairman or, as the case may be, Vice- Chairmen thereof and the Members so designated shall exercise such of the powers and perform such of the functions of the Chairman as may be delegated to him by the Chairman by a general or special order in writing.".

Amendment of section 31.-

13. In section 31 of the principal Act, for the words" Chairman, Vice- Chairman and other Members", the words" Chairman and other Members" shall be substituted.

Amendment of section 32.-

14. In section 32 of the principal Act, the word" Vice- Chairman" wherever it occurs shall be omitted.

Amendment of section 35.-

15. In section 35 of the principal Act, in sub- section (2),-

(i) in clause (b), for the words" Chairman, Vice- Chairman or other Member", the words" Chairman or other Member" shall be substituted;

(ii) in clause (c), for the words" Chairman, Vice- Chairman and other Members", the words" Chairman and other Members" shall be substituted.

15. With the above Amendment Act, 2007 the post of Vice Chairman was

abolished and all the posts (other than the Chairman) have come to be called as

Members. It was at this time that the status of the Members has been equated

with that of High Court judges by providing that the service conditions of the

Members would be the same as applicable to the Judges of the High Court.

Accordingly, the terms and conditions, such as pay structure, leave, medical

facilities, transport facilities, Leave Travel Concession, etc., of such members

of the Tribunal have all been brought at par with that of the Judge of the High

Court.

16. The hierarchy in the stenographic cadre in the C.A.T. is comparable to

that of in the Central Secretariat Stenographic Services (CSSS). This equation,

though not provided for in any statutory provision, has been so held in the

following decisions of the Tribunal and on the basis of the same, whatever

directions were given to the respondents have all been duly complied with:

(a) R.K. Sareen vs Union of India (OA No. 777 of 1992) (b) K. Muraleedharan Nair and 4 others (OA No. 475 of 2006)

17. Two aspects are to be seen at this juncture. First is the entitlement of the

Members of the Tribunal as to the services of a Principal Private Secretary and

the next is whether the claim of the applicant for upgradation at par with that of

the CSSS Cadre is justified.

18. In so far as the first aspect is concerned, with the amended Act (2007)

the terms and conditions of the Members are the same as that of a High Court

judge. The functions of the Members of the Tribunal are adjudication of

service matters of the Central Government servants and those of certain other

notified institutions. The onerous functions of the Members are certainly

comparable to those of the High Court Judges as could be substantiated by the

observations of the Apex Court in some of the Judgments as hereunder:- (a) In the case of L. Chandra Kumar v. Union of India, (1997) 3 SCC 261, the Apex Court has held as under:

"8.65 A Tribunal which substitutes the High Court as an alternative institutional mechanism for judicial review must be no less efficacious than the High Court. Such a Tribunal must inspire confidence and public esteem that it is a highly competent and expert mechanism with judicial approach and objectivity. What is needed in a Tribunal, which is intended to supplant the High Court, is legal training and experience, and judicial acumen, equipment and approach."

(b) In the case of Union of India v. Kali Dass Batish, (2006) 1 SCC 779, the

Apex Court has observed as under:-

"It must be remembered that CAT is a Tribunal constituted under Article 323-A of the Constitution and is expected to have the same jurisdiction as that of a High Court. Consequently, Parliament has taken great care to enact, vide Sections 6 and 7 of the Act, that no appointment of a person possessing the qualifications prescribed in the Act as a member shall be made, except after consultation with the Chief Justice of India. The consultation with the Chief Justice of India is neither a routine matter, nor an idle formality. It must be remembered that a member of an Administrative Tribunal like CAT exercises vast judicial powers, and such member must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate there against."

(c) The difference in status of a member prior and posterior to the 2007

Amendment has been taken note of by the Apex Court in the case of Shankar

Raju vs Union of India (2011) 2 SCC 132 by referring to the provisions of

Section 8 of the Act before and after Amendment: Section 8(Before Amendment) Section 8(After Amendment)

"8. Term of office.--The Chairman, 8. Term of office.--(1) The Chairman Vice-Chairman or other Member shall hold office as such for a term of shall hold office as such for a term five years from the date on which he of five years from the date on enters upon his office:Provided that which he enters upon his office, no Chairman shall hold office as such but shall be eligible for after he has attained the age of reappointment for another term of sixty-eight years. five years:Provided that no

Chairman, Vice-Chairman or other (2) A Member shall hold office as Member shall hold office as such such for a term of five years from after he has attained- the date on which he enters upon his office extendable by one more term

(a) in the case of the Chairman or of five years: Vice-Chairman, the age of sixty-

five years, and(b) in the case of Provided that no Member shall any other Member, the age of hold office as such after he has sixty-two years. attained the age of sixty-five years.

(3) The conditions of service of

Chairman and Members shall be the

same as applicable to Judges of the

High Court.

(d) In an unfortunate event of a Member of the Tribunal having been

harassed by the Police Authorities at Ranchi, when the Apex Court had dealt

with the case, the following observation had been made by the Court in

Relating To Criminal Intimidation, In Re v. Union of India, (2009) 8 SCC

252, at page 255 :

It is an obligation on the part of the State authorities and all other persons concerned to provide a conducive atmosphere for dispensation of justice. (underlining supplied)

(e) In yet another case, the respondents themselves had submitted before the

Apex Court about the status of the Member of the Tribunal. In the case of A.K.

Behera v. Union of India, (2010) 11 SCC 322, the Apex Court has observed

as under:-

"19. On service of notice, the counter-affidavit has been filed on behalf of the respondents by Ms Manju Pandey, Under- Secretary in the Ministry of Personnel, Government of India. In the counter-affidavit it is stated that the Administrative Tribunals (Amendment) Act, 2006 was intended to achieve the following objects:

(i) To abolish the post of Vice-Chairman in the

Tribunals as it was creating an avoidable three-tier institution and resulting in anomalies in qualifications, age of retirement, service conditions, etc. The Act was passed so that all the Members of the Central Administrative Tribunal

can be elevated to the same status as of a High

Court Judge and, therefore, the service conditions of the Members of the Tribunals were upgraded to that of a Judge of the High Court i.e. the same as was of a Vice-Chairman under the unamended

Act."

19. The Apex Court had, in the above case, after considering the affidavit of

the Respondents, further observed as under:

"23. What is asserted in the counter-affidavit is that as per Section 12 of the amended Act, the Chairman of the Tribunal would have all financial and administrative powers over the Benches, but the Vice-Chairman can be designated by the Central Government, obviously with concurrence of the Chairman, and a Member so designated would discharge such functions of the Chairman as the Chairman may direct and, therefore, it is wrong to contend that by introduction of Section 12(2) of the Act, the independence of the judiciary and independence of the Tribunal is sought to be curtailed by the executive. It is explained in the counter-affidavit that earlier the post of Vice-Chairman was not a promotional post for a Member of the Tribunal and the qualifications of the Vice-Chairman were different from a Member of the Tribunal, but, by amendment the qualifications of Members of the Tribunal have been raised to that of the Vice-Chairman and this change in qualifications neither affects the status of a retired High Court Judge nor confers arbitrary benefits on the non-Judicial Members and, therefore, the said provision is perfectly legal. It is further pointed out in the counter- affidavit that except the change in the nomenclature, a retired High Court Judge would get exactly the same facilities, if he is appointed today as Member of the Tribunal instead of designating him as Vice-Chairman of the Tribunal under the unamended Act and, therefore, it is wrong to contend that the amendments are violative of the provisions of the Constitution. (underlining supplied)."

20. The above observations of the Apex Court and the admission by the

DOPT before the Apex Court would go to show that the equation of the status

of the Member of the Tribunal is with that of the High Court judge. It was for

this reason that the service conditions have also been kept at par with that of

the High Court judge. Again, the service condition should include identical

conducive atmosphere and facilities comparable to that of the High Court

judge. Viewed from this, entitlement of a Member for a Principal Private

Secretary is more than justified.

21. Next is the question of equation of the Secretariat service with that of the

Central Secretariat Stenographers service. In the CSSS cadre, the upgradation

of various posts and the total number of posts in each of the grade corresponds

to the status of the officers for whose assistances the services of such staff are

utilized. In the CSSS cadre, the latest order passed is as at Annexure A-3 dated

28th October, 2005. This provides for availability of the services of one Senior

Principal Private Secretary, one Private Secretary and one Steno Grade-C to

each of the Secretary/Special Secretary/Additional Secretary to the

Government of India and officers of equivalent rank working in the

Ministries/Departments of Government of India. Vide Annexure A-4 OM

dated 18th November 2005, it has been clearly stated that in order to maintain

parity in the total number of posts of Senior PPS and PPS of the CSSS with

that of the total number of posts of Secretary/Addl. Secretary level Officers

(who are provided secretarial/stenographic assistance by the members of

CSSS) the Government has also decided to appropriately adjust the total

number of posts of PPS through up-gradation/down-gradation of posts of

PS/PPS. Not only that such a numerical equation has been provided for in

respect of the present sanctioned strength but even in future, there would be a

corresponding parity in the numerical strength of CSSS cadre staff as is spelt

out in para 4 of the said OM dated 18th November, 2005 wherein it has been

stated, "In order to maintain parity in the total number of posts of Senior PPS

and PPS of CSSS with that of the number of posts of Secretary/Additional Secretary level Officers, in future, cadre authorities are requested to ensure that

whenever there is any change in the number of posts of Secretary/Addl.

Secretary/equivalent in their respective cadre units this Department may please

be informed immediately to enable it to make appropriate adjustments in the

number of Posts of PPS." It is on the same basis that the applicants claim that

in their case too there must be up-gradation of posts of PS to PPS

corresponding to the number of Members who are equated in status to that of

High Court Judge.

22. Though the counsel for the respondents repeatedly submitted that there

cannot be any comparison of the stenographic services of the CAT with that of

the CSSS, the fact remains that such an equation has already been affirmed by

the Tribunal in the case of S.R. Dheer and others vs Union of India (vide OA

No. 164 of 2009). In that case, paragraphs 48 to 52 of the order dated 19-02-

2009 as extracted below refers:-

"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 of 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

the counterparts 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 of India & 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 of

#equal pay for equal work# at 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 of 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 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 the parity,

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 of 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 the rule

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 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 as a historical background leaves no

doubt in our mind that there has been a historical parity of 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 consideration

and 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. Sareen#s case (supra) which, on

affirmation from the High Court, 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 of

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."

23. In view of the fact that earlier vide Annexure A-2, commensurate with

the number of Vice Chairmen, sixteen number of PPS had been made available

by upgrading corresponding number of PS to PPS; similarly, the situation as at

present does warrant such an upgradation to enable each of the Member of the

Tribunal to have the services of PPS.

24. It has been submitted by the counsel for the respondents that a sub

committee had been formed to consider the issue. It is seen that the committee

which was formed long back and no tangible proposal had been brought out

since one by one, the members constituting the Committee kept on demitting

the charges as Members. And, here again, what kind of proposal could they

make over the entitlement of PPS to Members? They cannot say that the status

of a Member does not call for a PPS for assistance. Nor can they say that the

PPS/PS/stenographers in CAT cannot be equated with their counterparts in the

CSSS cadre as such a parity has already been established through a judicial

decision. Thus, the excuse the respondents seek that the sub committee is

examining is purely to justify the delay in their action.

25. Attempt was made to refer to the case of one Unnimenon in which the

Supreme Court has held that he does not belong to an organized Accounts

cadre. That case has no bearing to the facts of this case.

26. In view of the above discussion, the claim of the applicant deserves to be

allowed. We accordingly allow the OA. In fact the respondents have to keep

in mind the provision for making available the services of a PPS to each

member in future also as in the case of CSSS cadre as contained in para 4 of

Annexure A-4 order dated 18th November, 2005. Since there is no such prayer,

we do not pass any order in that regard. However, in so far as the

implementation of this order is concerned, the claim is not personal to the three

applicants only but equally applies to all those who are similarly situated. For

it is one of the cardinal principles of jurisprudence that a judgment in rem is to

be made applicable to all those similarly situated without driving such similarly

situated persons to knock at the doors of the Tribunal. In this regard, the

following decisions of the Apex Court and also the Pay Commission

Recommendations are relevant to be reflected:-

(a) The Apex Court as early as in 1975 in the case of Amrit Lal Berry

v. CCE, (1975) 4 SCC 714 , held as under:-

We may, however, observe that when a citizen aggrieved by the action of a government department has approached the Court and obtained a declaration of law in his favour, others, in like circumstances, should be able to rely on the sense of responsibility of the department concerned and to expect that they will be given the benefit of this declaration without the need to take their grievances to court.

(b) In Inder Pal Yadav v. Union of India, (1985) 2 SCC

648, the Apex Court has held as under:-

"... those who could not come to the court need not be at a comparative disadvantage to those who rushed in here. If they are otherwise similarly situated, they are entitled to similar treatment, if not by anyone else at the hands of this Court.

(c) The V Central Pay Commission in its recommendation, in regard

to extension of benefit of court judgment to similarly situated, held

as under:-

"126.5 - Extending judicial decisions in matters of a general nature to all similarly placed employees. - We have observed that frequently, in cases of service litigation involving many similarly placed employees, the benefit of judgment is only extended to those employees who had agitated the matter before the Tribunal/Court. This generates a lot of needless litigation. It also runs contrary to the judgment given by the Full Bench of Central

Administrative Tribunal, Bangalore in the case of C.S. Elias Ahmed and others v. UOI & others (O.A. Nos. 451 and 541 of 1991), wherein it was held that the entire class of employees who are similarly situated are required to be given the benefit of the decision whether or not they were parties to the original writ. Incidentally, this principle has been upheld by the Supreme Court in this case as well as in numerous other judgments like G.C. Ghosh v. UOI, [ (1992) 19 ATC 94 (SC) ], dated 20-7-1998; K.I. Shepherd v. UOI [(JT 1987 (3) SC 600)]; Abid Hussain v. UOI [(JT 1987 (1) SC 147], etc. Accordingly, we recommend that decisions taken in one specific case either by the judiciary or the Government should be applied to all other identical cases without forcing the other employees to approach the court of law for an identical remedy or relief. We clarify that this decision will apply only in cases where a principle or common issue of general nature applicable to a group or category of Government employees is concerned and not to matters relating to a specific grievance or anomaly of an individual employee."

(d) In a latter case of Uttaranchal Forest Rangers' Assn. (Direct

Recruit) v. State of U.P.,(2006) 10 SCC 346, , the Apex Court has

referred to the decision in the case of State of Karnataka vs C Lalitha

(2006) 2 SCC 747 as under:

"29. Service jurisprudence evolved by this Court from time to time postulates that all persons similarly situated should be treated similarly. Only because one person has approached the court that would not mean that persons similarly situated should be treated differently.

28. A pragmatic situation involved here is how to implement the same. In

the case of CSSS, there is a proper pyramidical structure of the entire hierarchy

as could be seen from Annexure A-8 order dated 25th February, 2011. The

ratio of PPS to PS is approximately 5:13 (773:2041). In the case of CAT, after

catering for each of the Member one PPS which would account for as many as

approximately 60 in number, hardly there would be any PS available. The up-

gradation could well be possible with the existing Private Secretaries, but as

and when the post of PPS become vacant, these may not be able to be filled up

by promoting the PS as adequate number of PS may not be available. The

Recruitment Rules provide only for promotion. Thus, there would be a need to

suitably amend the Recruitment rules, to pave way for filling up of the future

vacancies in the PPS grade. It is for the Government to consider and modify

the Recruitment Rules.

29. Thus, the OA stands allowed. It is declared that each of the Members of

the Central Administrative Tribunal shall be provided with the services of a

Principal Private Secretary. For this purpose, respondents shall upgrade the

requisite number of the post of Private Secretaries to that of PPS. For such an

up-gradation which is identical to that in the CSSS grade, vide Annexure A-8,

the normal rule of matching saving etc., shall not be insisted for the purpose of

up-gradation.

30. This order shall be complied with, within a period of four months from

the date of communication of this order. No costs.

K.NOORJEHAN Dr K.B.S.RAJAN ADMINISTRATIVE MEMBER JUDICIAL MEMBER

aa.