Judgement dated 01 Oct 2013 regarding upgradation of grade pay of Rs 4600/- in r/o OS/Steno at par with CSCS filed by All India MES Clerical Cadre & Group D Employees Association (O.A. No.2389/2012 )

Central Administrative Tribunal

Principal Bench

 

O.A. No.2389/2012

MA No.1978/2012

Order reserved on: 16.08.2013

Order pronounced on: 01.10.2013

Hon ble Mr. V. Ajay Kumar, Member (J)

Hon ble Mr. V.N. Gaur, Member (A)

1.         All India MES Clerical Cadre & Group D

            Employees Association & Anr.,

            Central Headquarter,

            C/o Chief Engineer, Delhi Zone

            Through:

1.         Shri Jit Singh Sharma,

            President.

2.         Sh. T.D. Pandey, Gen Secretary                          

-Applicants

(By Advocate Shri D.S. Mahendru)

Versus

1.         Secretary, Ministry of Defence,

            South Block,

            New Delhi-110001.

2.         The Engineer-in-Chief,

            Integrated Headquarters,

            MOD (Army),

            Kashmir House,

            New Delhi-110011.

                                                -Respondents

(By Advocate Shri Rajesh Katyal)

O R D E R

Mr. V.N. Gaur, Member (A):

           

MA No.1978/2012 for joining together in single application under Rule 4 (5) (a) of the Central Administrative Tribunal (Procedure) Rules, 1987 is allowed in the interest of justice and to avoid multiplicity of litigation.

2.         This OA has been filed by the All India Military Engineering Service (MES) Clerical Cadre and Group D Employees Association through its President and General Secretary, seeking to redress the alleged anomaly in the grant of pay scale of ministerial staff of MES vis-`-vis pay scale of ministerial staff of Central Secretariat (CS) and Armed Forces Headquarters (AFHQ) . 

3.         In brief the facts of the case are that the VI Central Pay Commission (VI CPC) in its Report had recommended parity in terms of the hierarchical structure of the office staff in field and secretariat offices upto the level of Assistants and Personal Assistants (PAs) and the said recommendation had been accepted by the Government of India.  The Office Superintendent (OS) of MES and Stenographers Grade-I were in the pay scale of Rs.5500-9000 as per the recommendation of the V CPC.  The Assistants/PAs in the CS/AFHQ were also in this scale.  Following the recommendation of the VI CPC they were all placed in the scale of Rs.6500-10500 (pre-revised). However, the Government of India, vide OM dated 16.11.2009 upgraded the grade pay of Assistants/PAs in CSS to Rs.4600/- in Pay Band-2, equivalent to Rs.7400-11500 (pre-revised) which was also applicable to the AFHQ, IFS B and Railway Board Secretariat Service and PAs in their counterpart Stenographer Service w.e.f. 01.01.2006.  The order also mentioned that one of the reasons due to which Assistants/PAs of CS were being granted grade pay of Rs.4600/-  was the fact that there  was an element of direct recruitment to the post and that too through an All India Competitive Examination.  This upgraded grade pay was, however, not extended to the applicants who are working in the MES Clerical cadre under the Ministry of Defence.

4.         Learned counsel appearing for the applicants submits that the applicants have been representing against this discrimination for quite some time and their demand had been considered and accepted by the Engineer-in-Chief  and forwarded to the respondent no.1.  But the same has not been accepted by the respondent no.1.  Instead, they have received a reply dated 14.09.2011 from the office of respondent no.2 in response to the representation dated 09.05.2011, addressed to the Union Finance Minister, which states as follows:

2.      The matter regarding increase of Grade Pay of Office Supdt (OS) of MES from existing Rs.4200 to Rs.4600 has been considered.  On examination, it is observed that the duties and the recruitment process of OS in MES are different from the Assistants of AFHQ, CSS and IFS B and therefore it may not be correct to equate both the posts.

3.         Accordingly, your request to increase the Grade Pay of OS in MES from Rs.4200 to Rs.4600 does not have merit and is not agreed to.

5.         Learned counsel for the applicants disputed the ground on which granting of two different grade pay to the applicants and their counterparts in CS/AFHQ have been sought to be justified. It was pointed out that the duties of the OS in E-in- C s Branch include:

Responsible for administration, supervision of office work and general discipline of staff in a GE s office/Section of a higher office.  Marking and distribution of Dak to different sections/Sub-sections.  Scrutinize letters before signature by officer.  Scrutinize service documents.  To guide clerical staff on Accounts, Laws, Rules and Regulations.  To supervise all MES Ministerial duties.  

The duties assigned to the Assistants/PAs in AFHQ have been defined as follows:

They are expected to be capable of noting on cases of intricate and complex nature.

Learned counsel was of the view that if at all there was any difference between the duties of the two classes of employees it was loaded towards OS in E-in-C s Branch because apart from discharging supervisory function the MES staff  was also liable to be transferred to far off places in the field and high altitude areas along with the combatants.  Further there was a historical parity between the applicants and Assistants/PAs in CS/AFHQ and OS in Railway offices.  Through a comparative chart given in the OA, which is reproduced below, the learned counsel submitted that the applicants and the OS in Railway offices were enjoying a higher scale of pay than the Assistants/PAs in CS/AFHQ in the III CPC:

S. No. Post    Pay scale as per 3rd CPC  Pay scale as per 4th CPC  Pay scale as per 5th CPC  Pay scale as per 6th CPC           

(a)       Office Supdt MES/Stenographers

Grade-I           550-900         1600-2600     5500-9000     Rs.6500-10500 (in pre-revised scale with Gr. Pay Rs.4200           

(b)       Asst. (CSS AFHQ)   425-600         16002600      5500-9000 revised on 25.09.06 as Rs.6500-10500            Rs.7450-225-11500 (in pre-revised scale with Gr Pay Rs.4600            

(c)        Office Supdt in Railway Offices    550-900         2000-3200     6500-10500   7450-11500 (in pre-revised scale with Gr Pay Rs.4600          

In the IV CPC while the applicants and Assistants/PAs in CS/AFHQ were given the same scale (Rs.1600-2600) the OS in Railways were given a higher pay scale (Rs.2000-3200). The same pattern continued in the V CPC when the applicants and the Assistants/PAs in CS/AFHQ were placed in the scale of pay of Rs.5500-9000 while the OS in Railways were placed in the scale of pay of Rs.6500-10500.  The VI CPC made a similar recommendation by placing the first two categories in the scale of pay of Rs.6500-10500 and the third i.e. OS in Railways have been placed in the scale of pay of Rs.7450-11500 with grade pay of Rs.4600.  It was, therefore, without any justification and an act of discrimination with the applicants that the Government of India upgraded only the grade pay of Assistants/PAs in CS/AFHQ and not other similarly placed employees like the applicants. 

6.         The learned counsel of the applicants also contested the other ground, i.e., difference in recruitment process on which the respondents have justified granting of higher scale of the Assistants/PAs in CS/AFHQ.  It was submitted that according to the recruitment rules for Assistants/PAs in AFHQ, 50% of the posts are to be filled up by promotion and 50% by direct recruitment through Staff Selection Commission on the basis of competitive examination, provided that in case sufficient number of candidates are not available in a year to fill vacancies to direct recruitment the deficiency shall be made up by promotion.  Similar direct recruitment component is also there in the grade of Assistants/PAs of CS.   In the clerical cadre of MES the post of OS is filled up 100% by promotion.  It was contended that the direct recruitment cannot be a ground for such discrimination in scales because the higher grade pay is not confined only to the directly recruited employee but it is also extended to the promotee component of that grade  in CS/AFHQ who are comparable to the applicants in the matter of duties and historical parity.  Learned counsel, therefore, prayed for allowing the present OA. 

7.         In his submission the learned counsel for the respondents drew attention to the pronouncements of the Hon ble Supreme Court with regard to the question relating to pay structure of government employees.  He submitted that the prayer made in the present OA was beyond the power of this Tribunal in view of the judgments of Hon ble Supreme Court in Secretary, Finance Department v. West Bengal Registration Service Association, 1993 Supp. (1) SCC 153, State of West Bengal v. Hari Narayan Bhowal, (1994) 4 SCC 78 and State of Haryana v. HESPSA, (2002) 6 SCC 72.  He further submitted that the question of equal pay for equal work has also been deliberated upon by the Hon ble Supreme Court in a number of cases and it has been held that if the duties, functions and qualifications for recruitment are different from the class of employees with whom parity is claimed, then such employees cannot claim such parity.  In this connection the learned counsel relied on the decisions of the Hon ble Supreme Court in Deb Narayan Shyam v. State of W.B., (2005) 2 SCC 286, and State of M.P. v. Ramesh Chandra Bajpai, (2009) 13 SCC 635.  Learned counsel stressed upon the authority of the employer to maintain the differential in the pay scales of different group of employees on the ground of educational qualification, mode and manner of appointment and other factors like nature of work, value thereof, responsibilities, reliability, experience, confidentiality, functional needs etc.  Mere similarity in designation or nature or quantum of work was not determinative of equality in the matter of pay scale.  Equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holders of two posts.  In this regard the learned counsel further relied on the judgments of the Supreme Court in Sohan Singh Sodhi v. Punjab SEB, (2007) 5 SCC 528, Union of India v. Manik Banerjee, (2006) 9 SCC 643 and State of Punjab v. Surjit Singh, (2009) 9 SCC 514. 

8.         Arguing on the merits of the case the learned counsel admitted that there was parity in the pay scales of the applicants and Assistants/PAs of CS/AFHQ till the V CPC.  However, the Government has decided to upgrade the scale of this class of employees by granting grade pay of Rs.4600 in Pay Band-2.  He pointed out that the OM dated 16.11.2009 of Ministry of Finance had mentioned that one of the reasons to grant the grade pay of Rs.4600/- to the Assistants and PAs of Central Secretariat Service, AFHQ service etc. was the fact that there was an element of direct recruitment to the post and the same was through an All India competitive examination with minimum qualification of graduation.  In case of MES, the post of Office Supdt. of MES are filled up 100% by promotion and there is no element of direct recruitment.  It was further observed that from the duties of Assistants/PAs of CS/AFHQ they are expected to be capable of making noting on cases on intricate and complex nature while the duties of OS of MES are related to general administration, supervision of office work and general discipline of staff.  As the duties and recruitment process of the two categories of employees are different, it will not be correct to equate these posts.  He also brought out that if the grade pay of OS of MES was increased to Rs.4600/- than the existing grade, the pay of entire chain of posts above OS of MES in admin cadre like AO-II (grade pay Rs.4600), AOI (grade pay Rs.4800) SAO (grade pay Rs.6600) and PAO (grade pay Rs.7600) would also be required to be revised upward to maintain hierarchy and command structure.  Referring to the decisions of Hon ble Supreme Court in many cases he stressed on the fact that unless there was a complete and wholesale identity between the two groups, no equality in pay  scales  can be claimed  and even there the matter should be sent for examination by an Expert Committee appointed by the Government instead of Court itself granting the higher pay scale.

9.         We have considered the submissions made by both the sides and perused the record placed before us.  We are conscious of the fact that it is not the function of this Tribunal to take up the work of deciding scale of pay to be given to any group of employees and which is rightfully the domain of the employer and the expert bodies like the Pay Commissions.   Therefore, we do not intend to discuss the law in this regard, as laid down in various judgments of Hon ble Supreme Court quoted by the learned counsel of the respondents.  However, on going though the submissions we notice certain obvious contradictions and anomalies.  The pay scales of the applicants and their counterparts Assistants/PAs in CS/AFHQ from III CPC onwards have been tabulated (supra) in the OA, and which has not been contested by the respondents.  The table clearly shows that in the III CPC the applicants and the OS in the Railways were placed in a higher pay scale than the Assistants/PAs of CS/AFHQ.  The OS in the Railways continued to have the edge in IV and V CPCs, even the VI CPC in its recommendations, as accepted by the Government in the beginning had maintained the same ratio.  As an expert body the VI Pay Commission after taking into account all relevant factors to determine the pay scales and the relativity among various categories of staff, as also stressed upon by the respondents, recommended granting identical scales to the applicants and the Assistants/PAs of CS/AFHQ.  It was only through the order dated 16.11.2009 that the grade pay of the Assistants/PAs of CS/AFHQ was upgraded on the ground of different duties and an element of direct recruitment through All India Competitive Examination.  Nowhere it has been contended by the respondents that these distinctions were of recent origin, arisen subsequent to the recommendations of the VI CPC and, therefore, could not have been taken into account by the VI CPC while making its recommendations.  It has also not been contended that the expert body had erred in maintaining traditional parity or relativity among these groups of employees which was sought to be corrected through the order dated 16.11.2009. 

10.       We accept the principle, as highlighted by the learned counsel for the respondents that the employer is within its rights to fix the pay scales and maintain differential among different groups of staff, but that has to be done on the basis of some rational grounds, more so when the employer intends to disturb the traditional parity reinforced by the recommendations of the Pay Commission. The direct recruitment can legitimately be taken as one such ground to justify grant of different pay scales to a group of employees.  However, direct recruitment is only one of the modes of recruitment in the cadres of Assistants/PAs of CS/AFHQ etc. as there are promotees also to the extent of 50% of the strength.  In the applicants cadre the OSs are appointed 100% by promotion.  What is not understood is as to how a higher scale of pay or grade pay which is justified on the ground of direct recruitment is extended to the promotees also.  If that is justified on the ground that both direct recruits and promotees are doing the same work and, therefore, no differential can be introduced, then how can it be justified that the same treatment cannot be given to a cadre which hitherto enjoyed parity with the Assistants/PAs of CS/AFHQ only on the ground that they are appointed 100% by promotion? 

11.       In the matter of duties of the two set of employees also there is nothing on record to show that the duties have changed of late.  If a person in the AFHQ is required to be capable of noting on cases of intricate and complex nature, there are other countervailing factors in the duties of OS of MES, including transferability to a far off location in the country as compared to Assistants/PAs in CS/AFHQ.  Once the duties are considered comparable, the denial of upgradation of pay to one class of promotees (applicants) is essentially based on the ground that the other promotees happen to belong to cadres where there is an element of direct recruitment.  To put it differently the upgradation enjoyed by that group of promotees is not linked to an upgraded set of duties or performance levels, instead it is a matter of chance that there is an element of direct recruitment in that grade.  Taking all these factors into account there appears to be contradictions in the grounds on which the respondents have denied parity to the applicants with Assistants/PAs in CS/AHFQ that need careful assessment and consideration by the respondents.

12.       Considering the entire conspectus of the case, we are of the view that there is a need to examine the issues raised in the representations of the applicants, more closely with reference to the order dated 16.11.2009.  We, therefore, direct the respondents to constitute an expert group with appropriate level composition to consider the representations of the applicants in the light of the observations made in the preceding paragraphs.  The expert group shall submit its report within a period of 04 months from the date of receipt of this order.  Thereafter the respondents shall take a final decision on the recommendations of the expert group by passing a speaking order, within a further period of 03 months.  The OA stands disposed of accordingly, with no order as to costs.

(V.N. Gaur)                                                       

(V. Ajay Kumar)  Member (A)                                                                    

Member (J)

San.