Central Administrative Tribunal Principal Bench OA No.2599/2010 New Delhi this the 13th day of July, 2011 Honble Mr. George Paracken, Member (J) Honble Mr. Khushi Ram, Member (A) 1. All India C.P.W.D. Office Staff Association, C Wing Ground Floor, Near Generator Room, I.P. Bhawan, New Delhi-110 0002 (Through its General Secretary, Shri Birender Kumar) 2. Shri Davinder Kumar, S/o Shri Jagan Nath, R/o G-242, Nanak Pura, New Delhi -Applicants (By Advocate: Shri L.R. Khatana) -VERSUS- 1. Union of India, Through Secretary to the Govt. of India, Ministry of Urban Development, Nirman Bhawan, New Delhi 2. Director General (Works), Central Public Works Department, Ministry of Urban Development, Nirman Bhawan, New Delhi 3. Secretary to the Govt. of India, Department of Expenditure, Ministry of Finance, North Block, New Delhi -Respondents (By Advocate: Shri R.V. Sinha) O R D E R (Oral)
Mr. George Paracken:
Applicant No.1 in this case is the All India CPWD Office Staff Association and the second applicant is Shri Davinder Kumar who is Head Clerk in the CPWD. Their claim is that Head Clerks of the CPWD may be granted the grade pay of Rs.4,600/- as in the case of Assistants and Personal Assistants of the Central Secretariat to whom the Government as per its order vide Annexure A-5 OM No.F1/1/2008-IC dated 16.11.2009 granted the upgraded pay of Rs.4600.
2. The background of this case is that the Sixth Pay Commission in its report has considered disparity between staff in Headquarters organizations, namely, the Secretariat of the Ministries and Departments of Government of India and its field agencies. According to it, time has come to grant parity between similarly placed persons employed in the field offices and in the Secretariat and such parity will need to be absolute till the Grade of Assistant. It has also been observed that the disparity was aggravated in 2006 when the Government further upgraded the pay scales of Assistants belonging to Central Secretariat Service from Rs.5500-9000 to Rs.6500-10,500. The relevant part of the recommendation is as under:-
3.1.1 The various Secretariats of the Ministries and Departments of Government of India together constitute the headquarters organization. The Secretariats are chiefly involved in matters relating to formulation of policy and ensuring that these policies are executed in a coordinated and effective manner. Actual execution of these policies, however, is left to field agencies outside the Secretariat which may be either attached or subordinate offices or quasi-Government/autonomous/public sector undertakings.
3.1.2 The senior administrative posts in the Secretariat are mainly filled by officers of All India Services and Central Group A services on deputation under the Central Staffing Scheme. Some of the posts in the middle level are also held by officers of the Central Secretariat Services, Railway Board Secretariat Service in Ministry of Railways, Defence Forces Headquarters Services in Ministry of Defence and by Indian Foreign services (B) in Ministry of External Affairs. Historically, various services in the Secretariat have been given an edge over analogous posts in the field offices. This was done on the ground that office staff in the Secretariat performs complex duties and are involved in analyzing issues with policy implications whereas their counter parts in field offices perform routine work relating to routine matters concerning personnel and general administration, etc. Another argument that is used to justify the edge for various posts in Secretariat is that in Secretariat, level jumping occurs and personnel in the grade of Assistant etc. submit files directly to decision making levels of Under Secretary, Deputy Secretary, etc. 3.1.3 Higher pay scales in the Secretariat offices may have been justified in the past when formulation of proper policies was of paramount importance. The present position is different. Today, the weakest link in respect of any Government policy is at the delivery stage. This phenomenon is not endemic to India. Internationally also, there is an increasing emphasis on strengthening the delivery lines and decentralization with greater role being assigned at delivery points which actually determines the benefit that the common citizen is going to derive out of any policy initiative of the Government. The field offices are at the cutting edge of administration and may, in most cases, determine whether a particular policy turns out to be a success or a failure in terms of actual benefit to the consumer. Accordingly, the time has come to grant parity between similarly placed personnel employed in field offices and in the Secretariat. This parity will need to be absolute till the grade of Assistant. Beyond this, it may not be possible or even justified to grant complete parity because the hierarchy and career progression will need to be different taking in view the functional considerations and relativities across the board.
3.1.4 A parity has long been established between the posts of Lower Division Clerk (LDC) and Upper Division Clerk (UDC) in Secretariat and field offices. The position becomes different for posts above UDC level; with the Assistant in Secretariat offices being placed in higher pay scale vis-`-vis those working in field offices. Earlier, the respective pay scales of Rs.5500-9000 and 5000-8000 existed for Assistants in Secretariat and in Field offices. This disparity was aggravated in 2006 when the Government further upgraded the pay scales of Assistants belonging to Central Secretariat Service to Rs.6500-10500.
3. Further, in the para 3.1.14 of its Report, they have recommended that the earlier scales of Rs.4500-7000/-, Rs.5000-8000 and Rs.5500-9000 granted to Stenographers Grade II and Grade I shall stand merged and be placed in the higher pay scale of Rs.6500-10500. Similarly in the case of ministerial post in non- Secretariat Offices, the posts of Head Clerks, Assistants, Office Superintendent and Administrative Officers Grade III in the respective pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 will stand merged. The relevant part of the said recommendation is as under:-
3.1.14 In accordance with the principle established in the earlier paragraphs, parity between Field and Secretariat Offices is recommended. This will involve merger of few grades. In the Stenographers cadre, the posts of Stenographers Grade II and Grade I in the existing scales of Rs.4500-7000/Rs, 5000-8000 and Rs.5500-900 0 will, therefore, stand merged and be placed in the higher pay scale of Rs.6500-10500. In the case of ministerial post in non- Secretariat Offices, the posts of Head Clerks, Assistants, Office Superintendent and Administrative Officers Grade III in the respective pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 will stand merged. The existing and revised structure in Field Organization will, therefore, be as follows:-
Designation Present pay Scale Recommended Pay scale Corresponding Pay Band & Grade Pay Pay Band Grade Pay LDC 3050-4590 3050-4590 PB-1 1900 UDC 4000-6000 4000-6000 PB-1 2400 Head Clerk/Assistants/ Steno Grade II/equivalent 4500-7000 5000-8000 Superintendent/ Asstt. Admn.
Officer/Private Secretary/equivalent 6500-10500
4. The Government of India has accepted the aforesaid recommendations of the Pay Commission and the pay scales of Rs.5000-150-8000, Rs.5500-175-9000, Rs.6500-200-6900 and Rs.6500-200-10500 have been placed in the Pay Band (PB)-2 and scale of Rs.8700-34800 with the Grade Pay of Rs.4200.
5. However, later the Government of India, Ministry of Finance, Department of Expenditure, vide Annexure A-5 Office Memorandum No.F.No.1/1/2008-IC dated 16.11.2009, have decided to grant the pay structure of grade pay Rs.4600 in the pay band PB-2 to posts that existed in the pre-revised scale of Rs.6500-10500 as on 1.1.2006. Accordingly, the Assistants and Personal Assistants in the Central Secretariat Service, Armed Forces Headquarters, Indian Foreign Service B and Railway Board Secretariat Service have been given Grade Pay of Rs.4600 w.e.f. 1.1.2006, in view of the fact that in their cases, there is an element of direct recruitment is involved. The relevant part of the said OM is as under:-
4. While considering the case of granting upgraded grade pay of Rs.4600 to Assistants and PAs in the Central Secretariat, it is noted that Sixth Pay Commission had recommended parity in terms of hierarchical structure of Office Staff in Field and Secretariat offices upto the level of Assistants and this recommendation had been accepted by the Government. However, one of the reasons due to which Assistants of Central Secretariat are being granted grade pay of Rs.4600 is the fact that there is an element of direct recruitment to the post and that too, through an All-India Competitive Examination. With the issue of this Departments OM of even no. dated 13th November, 2009, the Grade Pay of Rs.4600 has already been introduced in the case of office staff in Field Officers. As far Central Secretariat is concerned, in order to continue to maintain parity between Field and Secretariat officers, introduction of a level in the hierarchy of Central Secretariat having grade pay of Rs.4200 in the pay band PB-2 between the grades of Upper Division Clerks and Assistants is necessary.
6. The applicants have made a representation dated 8.2.2010 (Annexure A-7) against the aforesaid decision of the Government of India and demanded the same grade pay of Rs.4,600 also on the ground that once the Pay Commission has recognized a homogeneous group of employees and the Government has already accepted that recommendation, one sub group among them cannot be taken out and treat them differently by granting higher grade pay, which is discriminatory.
7. The respondents have considered the aforesaid representation and vide impugned Office Memorandum dated 21,4,2010 (Annexure A-1) stated that the post of Head Clerk in the CPWD does not involve the element of direct recruitment through All India Competent Examination, and therefore the Head Clerks are not likely to be placed in the pay scale of Rs.4600. They have stated that element of direct recruitment has been made by the Government for granting higher grade pay to the Assistants of CSS cadre. They have further stated that certain percentage of post of Head Clerks has been taken to be filled by direct recruitment through All India Competitive Examination in the draft recruitment rules but until the said recruitment rules are published, it is premature to recommend the grade pay of Rs.4600 to the Head Clerks of CPWD.
8. The applicants have challenged the aforesaid decision of the respondents in this OA on the ground that the impugned Annexure A 1 order is absolutely illegal, arbitrary, discriminatory, unjust and unreasonable inasmuch as the same has caused hostile and invidious discrimination between the Field and Secretariat offices in respect of which Sixth Pay Commission has recommended parity upto Assistant cadre of CSS and Head Clerks of the CPWD and the same has been duly accepted and implemented by the Government. Hence, the subsequent discrimination made against the aforesaid homogenous group of employees in respect of whom, the parity has already been established and accepted totally is again illegal, arbitrary and therefore, bad in law. The other contention of the applicants is that the impugned action of the respondents is contrary to the earlier statement made by the Sixth Pay Commission itself in regard to implementation of its recommendations as a package and any deviation therefrom is bound to result in anomalies to destroy the entire structure of the recommendations as has happened in the present case. In this regard, they have referred to paragraph 1.2.25 of the report of the Sixth Pay Commission which reads as under:-
All the recommendations are inter-connected and need to be treated as an organic whole. Partial implementation of these recommendations will destroy the underlying spirit, break the common thread and bring in several anomalies and inconsistencies. The Report would, therefore, need to be treated in a holistic manner and the recommendations considered as a package.
9. The learned counsel for the applicants, Shri L.R. Khatana, relied upon the following judgments of the Apex Court in support of his aforesaid submissions with its respective relevant parts:-
(a) State of Mizoram & Anr. Vs. Mizoram Engineering Service Assocaiton & Anr., (2004) 6 SCC 218 6. Great stress was laid on the fact that Engineering Service in the State was not an organized service and therefore, it did not have categorisation by way of entrance level and senior level posts and for that reason the higher scale of Rs. 5900-6700 which was admissible for senior level posts could not be given in the Engineering Service. The main reason for dubbing Engineering Serv-ice as an unorganized service in the State is absence of recruitment rules for the serv-ice. Who is resposible for not framing the recruitment rules? Are the members of the Engineering Service responsible for it? The answer is clearly 'No'. For failure of the State Government to frame recruitment rules and bring Engineering Service within the frame-work of organized service, the engineers can-not be made to suffer. Apart from the rea-son of absence of recruitment rules for the Engineering Service, we see hardly any dif-ference in organized and unorganized serv-ice so far as Government service is con-cerned. In Government service such a dis-tinction does not appear to have any rel-evance. Civil Service is not trade unionism. We fail to appreciate what is sought to be conveyed by use of the words 'organised service' and 'unorganised service'. Nothing has been pointed out in this behalf. The ar-gument is wholly misconceived.
(b) The Employees of Tannery and Footwear Corporation of India Ltd. & Anr. Vs. UOI & Ors., 1991 Supp(2) SCC 565 16. State of U.P. v. J. P. Chaurasia (AIR 1989 SC 19) (supra) on which reliance has been placed by Shri Mahajan deals with the question as to equation of duties and responsibilities for applying the principle of ,equal pay for equal work'. Therein this Court has held that the matter of equation of posts for the purpose of equation of pay must be left to the executive and must be determined by expert bodies like Pay Commission and that if there is such a determination by a Commission or Committee the Court should normally accept it. The principle laid down in the said decision was reiterated in the other decisions relied upon by Shri Mahajan. Here we are not concerned with equation of posts because the posts falling in the abovementioned four categories of employees in the respondent corporation as well as the Cotton Corporation of India are of the same level and employees working on these posts were having the same pay-scales in 1970. There is nothing on the record to show that after 1970 there has been any change in the duties and functions of the persons holding these posts in the two corporations which may justify fixation of different pay-scales for these posts in the two corporations. The pay-scales of the petitioners as revised by order dated April 25, 1986, cannot, therefore, be upheld. The respondents Nos. 1 and 3 should so revise the pay-scales of the petitioners as to be at par with pay-scales enjoyed by the employees falling in the same category in the Cotton Corporation of India on the date from which the said revised pay-scales are to be applied. Under order dated April 25, 1986, the revision of the pay-scales of the petitioners has been made with effect from August 1, 1983 and is valid up to July 31, 1987. The revision in the pay-scales of the petitioners should be made keeping in view the pay-scales and allowances enjoyed by the employees falling in the same category in the Cotton Corporation of India on August 1, 1983 and such revision may be made operative up to July 31, 1987, as provided in the order date April 25, 1986.
(c) Nehru Yuva Kendra Sangathan Vs. Rajesh Mohan Shukla & Ors. (2007) 6 SCC 9 9. Now, these appeals have come up for hearing. We find that the nature of duties being discharged by the Youth Coordinators who have come on deputation and have been absorbed as such and those who were directly recruited on fixed term are discharging the same duties. The only difference is their source of recruitment. Once the deputationists are discharging the same duties and are being paid salary and other allowances then there is no reason to deny the same benefits who are discharging the same duties and functions. Those deputationists now absorbed obtained the order from this Court but the direct recruits did not approach this Court, they were treated as a class apart because of their source of recruitment. Once these persons are already working for more than two decades discharging the same functions and duties then we see no reason why the same benefit should not be given to the respondents. Looking to the nature and duties of these respondents we are of opinion that there is no reason to treat them differently. However, at the time of admission this Court on 1.5.2000 confined the relief from the date of filing of the writ petition before the High Court. In fact, these directly recruited Youth Coordinators approached the Court in earlier point of time but they were advised to approach the Government and they did approach the Government but the Government denied them the same relief as was given to the deputationists. Therefore, there is no reason not to grant them the same scale pay and as such this Court at the time of admission has confined the relief that why it should not be granted from the date of the filing of the writ petition in the High Court. Accordingly, we dispose of these civil appeals with a direction that the same benefits as were being given to the Youth Coordinators who were initially on deputation and were absorbed, should be given to the respondents from the date of filing of the writ petition in the High Court of Allahabad. Hence, the order of the High Court of Allahabad is affirmed with minor modification as indicated above. There would be no order as to costs.
(d) State Bank of India & Ors. Vs. T.J. Paul, (1999) 4 SCC 756 12. We have considered the limited issue. We are of the view that all these appellants should get the same relief as the appellants in the earlier Civil Appeal which arose out of Special Leave Petition No. 16646 of 1995. Once they were all in one cadre, the distinction between direct recruits and promotees disappears at any rate so far as equal treatment in the same cadre for payment of the pay scale given. The birth marks have no relevance in this connection. If any distinction is made on the question of their right to the post of Data Processing Assistants they were holding and to its scale - which were matters common to all of them before the impugned order of the Government of India was passed on 2-7-1990, - then any distinction between Data Processing Assistants who were direct recruits and those who were promotees, is not permissible. We, therefore, reject the respondent's contention. We have examined the record and the common points arising in this case and those in Civil Appeal which arose out of Special Leave Petition 16646 of 1995 and we are unable to find any lawful distinction between the appellants and those in the other appeal which has been allowed.
(e) Purshottam Lal Vs. Union of India, (1973) 1 SCC 651 15. Mr. Dhebar contends that it was for the Government to accept the recommendations of the Pay Commission and while doing so to determine which categories of employees should be taken to have been included in the terms of reference. We are unable to appreciate this point. Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendations it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Arts. 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned. Randhir Singh Vs. UOI & Ors., (1982) 1 SCC 618 3. 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. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.
10. The learned counsel for the respondents, Shri R.V. Sinha, has submitted that applicants claim for parity with the CSS cadre of Assistants and Stenographers is absolutely untenable as later category has always been in higher pay scales even before the year 2006. He has, thus denied the contention of the applicants that there was historical parity between the Assistants of CSS cadre and Head Clerks of CPWD. The Assistants of CSS cadre were earlier placed in the pre-revised pay scale of Rs.6500-10500, whereas the Head Clerks of CPWD were placed in the pre-revised pay scale of Rs. 5000-8000. He has also submitted that though the element of direct recruitment to fill up the post of Head Clerk through All India Competitive Examination has been proposed in the draft Recruitment Rules, they are under consideration of the Ministry which will scrutinize the same and to send it for approval of DOPT, UPSC and Ministry of Law. Further, the CPWD is not the final authority in the matter of Recruitment Rules and a mere proposal of partial direct recruitment does not confer any right for the grade pay of Rs.4600/- to Head Clerks.
11. We have heard the learned counsel for the parties and we have gone through the records. The basic contention of the learned counsel for the applicants, Shri L.R. Khatana, is that once the Pay Commission has considered the Head Clerks of CPWD and Assistants of CSS cadre as one homogenous group, the Government is restrained from making any exception in the matter and grant grade pay of Rs.4600 to only one sub-group. In our considered view, the aforesaid contention of the learned counsel cannot be accepted. What has been considered by the Pay Commission is parity of pay scale and grade pay with respect to certain categories of employees and it has been accepted by the Government. However, the Government being the ultimate authority to grant the pay scales and grades pay to the various categories of staff working under them, they cannot be prevented from reconsidering the matter for other reasons. It is also its prerogative to grant different pay scale and grade pay to any particular category of employees considering the differences in their source of recruitments. Admittedly, the Assistants and Stenographers in the CSS cadre are appointed after rigorous competition held by the Staff Selection Commission on All India basis whereas the source of recruitment of Head Clerks in CPWD is by promotion from among Upper Division Clerk working in the same office. Accordingly, the source of recruitment of Head Clerks and Assistants are not comparable at all. Moreover, the Pay Commission has recommended the grade pay of Rs.4200 to the applicants and the Government has accepted it. The higher grade pay granted to another category of employees for specific reason is not a ground for the applicants to claim the same. So long as there is no curtailment in their grade pay, they cannot have any valid grievances.
12. In view of above position, we do not find any merit in the present case and accordingly the OA is dismissed. There shall be no order as to costs.
(Khushi Ram) (George Paracken) Member (A) Member (J) /lg/