Mrs. Ramesh Dang and Others Vs. Director, Directorate of Income Tax (Oandms), New Delhi and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1150252
CourtCentral Administrative Tribunal Principal Bench New Delhi
Decided OnJan-15-2014
Case NumberO.A.No.2906 of 2011
JudgeTHE HONOURABLE MR. GEORGE PARACKEN, MEMBER (J) & THE HONOURABLE MR. SHEKHAR AGARWAL, MEMBER (A)
AppellantMrs. Ramesh Dang and Others
RespondentDirector, Directorate of Income Tax (Oandms), New Delhi and Others
Excerpt:
g. george paracken, member (j). 1. applicants in this original application are technical assistants (œtas? for short) in the directorate of organisation and management (œdoms? for short) under the department of revenue and banking. their grievance is that till 21.04.2004, they were at par with the income tax inspectors under the department of revenue and up to 15.09.2006 with the assistants of central secretariat service (œcss? for short). while upgrading the pay scales of income tax inspectors of department of revenue and the assistants of css, their pay scale has not been revised. 2. the brief facts of the case are that the applicants were appointed in terms of directorate of organisation and management (group œc? and group œd?) recruitment rules, 1977. according to the said rules, the pay scale of tas was in the scale of rs.550-25-75-750-eb-30-900 and the method of recruitment was by promotion failing which by transfer on deputation. in the case of promotion, it was made from among the grade of programme assistants and stenographer (s.g.) possessing a bachelors degree or equivalent in commerce/statistics/economics/mathematics and who have undergone training in work-study techniques and with 3 years service in the respective grades in the directorate. as far as transfer/deputation is concerned, the appointments were made from the assistants of the css/income tax inspectors/head clerks or udcs of i.t. department a bachelors degree or equivalent in commerce/statistics/economics/mathematics and who have undergone training in work-study techniques and with 3 years service in the grade. thus, the assistants of css and the inspectors in the income tax used to seek deputation to the aforesaid post of tas till the recruitment rules in respect of inspectors in the income tax and the assistants of css were revised. the appointments of the inspectors in the income tax were governed by the income tax department (inspector) recruitment rules, 1969 as amended by the income tax department (inspector) recruitment rules, 1986 notified on 08.09.1986. their pay scale was rs.425-15-500-eb-15-560-20-700-eb-25-800 and method of recruitment was 33 1/3% of vacancies to be filled up by direct recruitment through a competitive examination and the remaining by promotion. as far as promotion was concerned, upper division clerks (œudcs? for short) and higher ministerial grades, stenographers (og) and stenographers (selection grade) with three years service in the respective grades who have qualified in the departmental examination for inspectors in the income tax were eligible. as far as the assistants in css were concerned, they are governed by the central secretariat service rules. thus, after the recommendation of the 5th cpc, the pay scale of the assistants in css/income tax inspectors/tas in doms was in the same scale, i.e., rs.5500-175-9000. thereafter, the scale of inspectors in the income tax has been upgraded vide f.no.a-41015/59/2002-ad.vii dated from rs.5500-175-9000 to rs.6500-200-10500. as per om no.20/29/2006-ss ii(cs-1) dated 25.09.2006, the pay of the assistants of css has also been upgraded from rs.5500-175-9000 to rs.6500-10500. however, no such increase in the pay scale has been given to the applicants who are tas. this has created anomaly as the pay scale of assistants in css was analogous to the pay scale of tas in the directorate of income tax. according to the applicants, when the tas in doms, assistants in css and the inspectors in the income tax were having the analogous pay scale till the revision of the pay scales of the inspectors in the income tax department and assistants in css, the respondents ought to have upgraded the pay scale of the tas in doms also to the same grade. this is particularly so, as the pay scale of the tas in doms were higher than the pay scale of the inspectors of income tax and assistants of css during the period of the second, third and fourth pay commissions. they have, therefore, submitted that when the tas were in a higher pedestal up to 4th pay commission and when the anomalous situation has occurred by the revision of the pay scale of the assistants of css and the inspectors of income tax, the respondents should have rectified the same and brought the pay scale of the tas in doms at least at par with the assistants of css and inspectors of income tax, if not higher. as per the recommendation of the 6th pay commission, the pay band and the grade pay of the post of tas in doms were made at par with those of inspectors of income tax, i.e., pay band of rs.9300-34800 and grade pay of rs.4200. however, the anomalous situation has again crept in on account of the subsequent upgradation of the grade pay of assistants of css and inspectors of income tax to rs.4600. 2. the applicants have made representation to the respondents in october, 2006 bringing out the aforesaid discrimination, disparity and anomaly in their pay scales vis-`-vis the assistants of css and the inspectors of income tax. further, according to the applicants, the director of income tax (oandms) was convinced regarding the aforesaid anomalous position and recommended for up-gradation of the pay scale of the applicants at par with assistants of css and the income tax inspectors vide his letter f.no.a-41015/86-2006-ad.vii dated 27.11.2006. however, no decision was taken on the said recommendation by the ministry of finance only on the ground that the 6th pay commission has already been constituted and the department/ministry could advice to all concerned associations to submit their recommendations directly to the commission. accordingly, the case of the tas in doms has been recommended to the 6th pay commission by the under secretary, government of india, ministry of finance, department of revenue, central board of direct taxes vide letter f.no.a-41015/862006-ad.vii dated 22.12.2006 based on the recommendations of the dit(oandms) vide its letter no.f.30/01/2006-ad/doms/1547 dated 06.11.2006. but the commission did not consider those recommendations. however, vide office memorandum no.f.1.1.2008-ic dated 13.11.2008, the department of expenditure conveyed the decision of the 6th pay commission recommending merger of three pay scales of rs.5000-8000, rs.5500-9000 and rs.6500-10500 and replaced them by the revised pay scale of grade pay of rs.4200/- in pb-2. the commissions recommendations was that on account of merger of three pay scales, some posts which may be constituted feeder and promotion grade would come to lie in an identical grade. the commission has also given specific recommendations in its report granting higher grade pay of rs.4600/- to some categories of those posts. as regards other posts, the commission recommended that first it will be seen if the posts in these three scales can be merged without any functional disturbance and if possible, the same should be done. further, the commission recommended that if it is not feasible to merge the posts in those pay scales due to functional consideration, the post in the scales of rs.5000-8000 and rs.5500-9000 should be merged with the posts in the scale of rs.6500-10500 being upgraded to the next higher grade in pb-2 with grade pay of rs.4600/- corresponding to the pre-revised scale of rs.7450-11500. in case a post already exists in the pay scale of rs.7450-11500, the post being upgraded from the scale of rs.6500-10500 should be merged with the post in the scale of rs.7450-11500. the aforesaid recommendation have been notified vide para (ii) section-i in parts œb? and œc? of the first schedule to the ccs(rp) rules, 2008. thereafter, a number of references were made proposing up-gradation of the posts which were in the pre-revised pay scale of rs.6500-10500 as on 01.01.2006 by granting them the grade pay of rs.4600/- in pb-2. thereafter the government has decided that the posts which were in the pre-revised scale of rs.6500-10500 as on 0101.2006 and which were granted the normal replacement pay structure of grade pay of rs.4200/- in the pay band pb-2, will be granted grade pay of rs.4600/- in the pay band pb-2 corresponding to the pre-revised scale of rs.7450-11500 w.e.f. 01.01.2006. 3.   on the basis of the aforesaid order, the director of income tax (doms) examined the representations submitted by the applicants and recommended, vide their letter dated 08.04.2010, for the upgradation of the grade pay of the post of tas. according to them, the claim of the tas for the upgradation of the grade pay of rs.4200/- to rs.4600/- was fully justified for the following grounds:- œ(a)the pay scales of the post of technical assistant in doms was higher than the pay scale of inspector of income tax and assistant of css in the 2nd, 3rd and 4th pay commissions. the pay scale of all these three posts were made at par by the 5th pay commission. subsequently, the pay scales of inspector of income tax and assistant of css were upgraded to rs.6500-10500/-. the 6th cpc merged the pre-revised pay scales of rs.5500-9000 and rs.6500-10500/- and placed in pb-2 with grade pay of rs.4200. now the grade pay of rs.4200/-, granted to the pre-revised pay scale of rs.6500-10500/-, has been upgraded to rs.4600/- vide department of expenditure om f.no.1/1/2008-ic dated 13.11.2009. thus, the upgradation of the grade pay of inspectors of income tax and assistants of css has led to an anomaly in so far as the tas of doms are concerned. the pay scale of tas of doms, which was higher than the pay scales of inspectors of income tax and assistants of css in the 4th pay commission, had become lower which has resulting to anomaly and discontentment among the tas. however, the anomaly has further crept in on account of subsequent upgradation of grade pay of rs.4600/- for the posts of assistants in css and income tax inspectors of income tax vide om f.no.1/1/2008-ic dated 13.11.2009 of department of expenditure, ministry of finance. this anomaly needs to be rectified urgently. the analytical study of the pay scales of technical assistants, inspectors of income tax and assistants of css which also substantiates the genuine demand of upgradation of grade pay of technical assistants, is given below:- date of effect pay scale of technical assistant (doms) pay scale of inspector of income tax pay scale of assistant in css remarks 1.1.1962 (iind pay commission) rs.325-575 rs.210-485 210-485 the pay scale of ta was higher than iti and assistant of css 1.1.1973 (iiird pay commission) rs.550-900 rs.425-800 rs.425-800the pay scale of ta was higher than iti and assistant of css    1.1.1986 (ivth pay commission)        rs.1640-2900 rs.1640-2900 rs.1640-2900 the pay scale of iti and assistant of css were upgraded and brought at par with ta 1.1.1996 (vth pay commission)  rs.5000-9000 rs.5000-9000 rs.5000-9000 the pay scales are retained at par with iti and assistant of css       21.04.2004 rs.5000-9000 rs.6500-10500 rs.5000-9000       the pay scale of iti was upgraded vide cbdt letter f.no.a-41015/59/2002-ad.vii dated 22.04.2004 (copy enclosed and became higher than ta) 25.09.2006 rs.5500-9000 rs.6500-10500       rs.6500-10500 the pay scale of assistant of css was also upgraded vide dopandt om no.20/29/206-cs.ii(cs-i)dated 25.09.2006 (copy enclosed and became higher than ta)      1.1.2006 (vith pay commission)     pb-2 (rs.9300-34800) and grade pay rs.4200/-pb-2 (rs.9300-34800) and grade pay rs.4200/- pb-2 (rs.9300-34800) and grade pay rs.4200/- the pay scales of ta, iti and assistant of css were kept at par 1.1.2008 department of expenditure (as per om f.no.1/1/2008-ic dated 13.11.2009)pb-2 (rs.9300-34800) and grade pay rs.4200/-       pb-2 (rs.9300-34800) and grade pay rs.4600/-  pb-2 (rs.9300-34800) and grade pay rs.4600/-      the grade pay of iti/assistant of css were made higher than that of ta.   b) according to the recruitment rules for the posts of technical assistants in doms are to be filled by promotion or transfer/ deputation. the posts by promotion are filled in from the grade of programme assistants and stenographers (og) of this directorate possessing a bachelors degree or equivalent in commerce/statistics/economics/mathematics and who have undergone training in work-study techniques and with 3 years service in the respective grades in the directorate. the posts on deputation/transfer are filled from the assistants of the css/income tax /department having at least 3 years service in their respective grades, possessing a bachelors degree or equivalent in commerce/statistics/economics/mathematics; and have undergone training in work-study techniques. the duty list of technical assistants also clearly explains the importance of the post and requirement of skill and specialized knowledge. since a majority of the posts of tas in doms were filled by transfer/ deputation by inspectors of income tax or assistants of css, it would be highly anomalous if the grade pay of technical assistant is kept below the grade pay of the posts of inspectors of income tax and assistants of css as no income tax inspector or assistant of css, having grade pay of rs.4600/-, would come on deputation to a lower grade pay of rs.4200/- of the post of technical assistant; as a result the posts of technical assistant will remain unfilled?. 4. however, the department of expenditure, vide its uo note no.15(21)/e.iii (b)/2010 dated 12.10.2010, rejected the proposal on the following grounds:- (i) as per the departments om dated 13.11.2009, the posts which were in the pre-revised scale of rs.6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of rs.4200/- in pb-2 will be granted grade pay of rs.4600/- in pb-2. the post of technical assistant in doms was in the pre-revised scale of rs.5500-9000 and thus is not covered under the om. (ii)  as per the departments om dated 16.11.2009, it was decided to extend the pay structure of grade pay of rs.4600/- in pb-2 to assistants of css, afhq, ifs œb? and railway board secretariat service w.e.f. 01.01.2006. further, one of the reasons due to which assistants of css have been granted grade pay of rs.4600/- is the fact that there is an element of direct recruitment to the post and that too, through all india competitive examination. in the instant proposal, the mode of recruitment to the post of technical assistant is through promotion failing which by deputation. thus the post of ta is not covered under the om dated 16.11.2009. (iii)  as per the rrs of the post of technical assistant in doms, the method of recruitment is by promotion failing which by transfer on deputation. thus filling up the post on deputation is not the primary method of recruitment. also, the field of selection on deputation is not limited to assistants of css and inspectors of income tax, the head clerks/udcs are also eligible to apply for the post?. 5. the respondents have filed the reply. according to them, as per the recruitment rules of assistant in css and inspectors in central board of direct taxes, there is an element of direct recruitment and that too, through an all india competitive examination whereas for technical assistants in doms the prescribed method of recruitment is by promotion failing which by transfer on deputation. hence, the posts of assistants in css and inspector of income tax in cbdt cannot be equated with doms. they have also stated that no anomaly has been created in the matter as submitted by the applicants. further, according to them, as per the department of expenditures om f.no.1/1/2008-ic dated 13.11.2009, the posts which were in the pre-revised scale of rs.6500-10500 as on 01.01.2006 and which were granted normal replacement pay structure of rs.4200/- in pb-2 will be granted grade pay of rs.4600/- in pb-2. the post of tas in doms was in the pre-revised pay scale of rs.5500-9000 and thus is not covered under the said om. 6.   the learned counsel for the respondents shri v.p. uppal has relied upon the judgment of the apex court in union of india and others vs. hiranmoy sen and others 2008 (1) scc 630 wherein the parity in employment and equal pay for equal work has been considered. the said judgment has also relied upon the earlier judgment of the apex court in the case of s.c. chandra vs. state of jharkhand 2007 (8) scc 279 wherein it has been held if posts a and post b have been carrying the same pay scales, merely because the pay scale of post a has been increased that by itself cannot result in increase in the pay scale of post b to the same level. it is entirely on the government and the authorities to fix the pay scales and to decide whether the pay scale of post b should be increased or not. the learned counsel for the respondents has also submitted that in the case of hiranmoy sen and others case (supra), unless there is a complete and wholesale identity between the two groups, the principle of equal pay for equal work cannot be applied. the relevant part reads as under:- œ4.  this court in s.c. chandra vs. state of jharkhand 2007(8) scc 279 has held that the court cannot fix pay scales as that is purely executive function. in the aforesaid decision one of us (markandey katju, j.) has discussed in detail the principle of equal pay for equal work and has observed that the said principle has been considerably watered down in recent decisions of this court, and it is not applied unless there is a complete and wholesale identity between the two groups, and even there the matter should be sent for examination by an expert committee appointed by the government instead of the court itself granting the higher pay scale. the entire case law on the subject has been discussed in the said decision. following the aforesaid decision in s.c. chandra case this appeal has to be allowed. it cannot be said that there is a complete and wholesale identity between the senior auditors in the office of accountant general, assam and meghalaya and assistants in the central secretariat. 5.   learned counsel for the respondents submitted that the auditors and assistants have been historically treated on a par in the matter of pay scales. although this fact has been denied by the appellant, we are of the opinion that even if it is correct, that will not be of any help to the respondents. to give an illustration, if post a and post b have been carrying the same pay scales, merely because the pay scale of post a has been increased that by itself cannot result in increase in the pay scale of post b to the same level. it is entirely on the government and the authorities to fix the pay scales and to decide whether the pay scale of post b should be increased or not. the judiciary must exercise self- restraint and not encroach into the executive or legislative domain?. 7.   the learned counsel for the respondents has also relied upon a judgment of the co-ordinate bench of this tribunal in oa no.2380/2011 zamir hasan khan and others vs. union of india and others decided on 29.01.2013. the applicants in the said oa were working as administrative officers (grade-iii and grade-ii) and private secretaries/senior private secretaries in the gazetted group œb? of the income tax department. their grievance was that the respondents were not extending the grade pay of rs.4800/- in pay band-2 and not granting them the grade pay of rs.5400/- after completion of 4 years of substantive service, as has been allowed to income tax officers, section officers of css and private secretaries in the csss. in the said order this tribunal has followed the principle laid down by the apex court that for claim for parity of pay scale to be sustained, not only the nomenclature has to be compared but duties, functions, powers, responsibilities and various criteria like promotional avenues, availability of speeded promotion in the offices other than the secretariat etc. have also to be considered. 8.   we have heard the learned counsel for the applicants shri manjeet singh ahluwalia and the learned counsel for the respondents shri v.p. uppal. in our considered view, the issue in this case is not that of parity of pay scales or complete and wholesale identity in two different groups. from the facts of the case itself, it is quite clear that among the three groups of employees, namely, the tas in doms, inspectors in the income tax and assistants in the css, the tas in doms was on a very high pedestal during the period from 01.01.1972 to 31.12.1985, i.e., the period of the second and third pay commissions. while the tas in doms was getting pay scale of rs.325-575/rs.550-900, the inspectors of income tax and assistants in css were getting comparatively lower pay scale of rs.210-485/rs.425-800. since the pay scales of the tas in the doms was at the higher level and the method of recruitment was by promotion failing which by transfer on deputation, the said post was not brought at par with the assistants of css and the inspectors of income tax themselves. in fact, the recruitment rules for the post of tas in doms says that it is to be filled up on transfer on deputation from among the assistants of css and inspectors of income tax also. however, the position has changed from 01.01.1986. the pay scales of all the three categories were fixed at rs.1640-2900 w.e.f. 01.01.1986 and also all the three groups were getting the same pay scale of rs.5500-9000. however, the pay scales of inspectors of income tax were upgraded by the cbdt vide their letter no.a-41015/59/2002-ad.vii dated 22.04.2004 and their scale of pay was upgraded from rs.5500-9000 to rs.6500-10500. later on, vide dopandt om no.20/29/2006-cs.ii(cs-i) dated 25.09.2006, the pay scale of assistants of css have also been increased from rs.5500-9000 to rs.6500-10500. there was absolutely no reason as to why the pay scale of the applicants has also not been revised from rs.5500-9000 to rs.6500-10500 as in the case of inspectors of income tax and assistants of css. the respondents themselves have admitted that the up-gradation of the grade pay of inspectors of income tax and assistants of css has led to an anomaly in so far as the tas of doms is concerned. they have also stated that the pay scale of tas in doms was higher than that the inspectors of income tax and assistants of css. again, they have admitted that the anomalous situation has further widened on account of subsequent upgradation of grade pay of rs.4600/- for the post of assistants in css and inspectors of income tax. therefore, the anomaly needs to be rectified. they have also admitted that since a majority of the posts of tas in doms were filled by transfer/ deputation by inspectors of income tax or assistants of css, it would be highly anomalous situation if the grade pay of tas is kept below the grade pay of the posts of inspectors of income tax and assistants of css having grade pay of rs.4600/- as they would not come on deputation to a lower grade pay of rs.4200/- of the post of tas. however, the department of expenditure did not agree to the aforesaid recommendation of the respondent no.1, i.e. director, directorate of income tax (organisation and management services) stating that as per the departments om 13.11.2009, the posts which were in the pre-revised scale of rs.6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of rs.4200/- in pb-2 will be granted grade pay of rs.4600/- in pb-2. they have also stated that the post of tas in doms was in the pre-revised scale of rs.5500-9000 and thus it is not covered under the aforesaid om. in our considered view, the department of expenditure did not appreciate the factual background of the scales of pay granted to the tas of doms, inspectors of income tax and assistants in css. they have also not appreciated the question that it is not a parity of pay scale but it was simply an anomalous situation. it is an undisputed position that according to the recruitment rules of tas in doms those posts was filled up from among the assistants of css/inspectors of income tax, as the pay scale of the latter two groups were much lower than that of the tas. by the aforesaid anomalous situation, the respondents have rendered the aforesaid recruitment rules itself infructuous. by granting the higher pay scale to the inspectors of income tax and the assistants of css, the deputation posts of the tas can no more be filled up from the assistants of css and inspectors of income tax. 9.   therefore, in our considered view, the rejection of the claim of the applicants for the pay scale of rs.6500-10500 by the ministry of finance, department of expenditure is highly a mechanical exercise of its powers. we also hold that the issue involved in this case is not parity of pay scale though the applicants have mentioned so in the prayer clause but from all the correspondence between the applicants department and the ministry of finance shows that it is a case of anomalous situation created by not increasing the pay scale of the applicants when the pay scales of the inspectors of income tax and assistants of css have been increased with effect from 22.04.2004 and 25.09.2006 respectively. we, in the above facts and circumstances of the case, allow this oa and quash and set aside the impugned annexure a-1 letter no.23.11.2010 addressed to the director, directorate of income tax (organisation and management services) vide uo note no.15(21)/e.iii(b)/2010 dated 12.10.2010 whereby the proposal for upgradation of pay scale has been rejected. consequently, we direct the respondents to grant the pay scale of rs.6500-10500 to the applicants who are technical assistants in directorate of organisation and management with effect from 21.04.2004, i.e., the date from which the inspectors of income tax were granted the said scale by the central board of direct taxes. for the same reason, we also direct the respondents to grant the grade pay of rs.4600/- in the scale of rs.9300-34800 (pb-2) as in the case of the inspectors of income tax and assistants of css with effect from 01.01.2008 granted vide om no.f.1/1/2008-ic dated 13.11.2009. however, as regards the payment of arrears are concerned, we restrict the same with effect from 01.01.2006, i.e., the date from which the aforesaid scale has been granted to the inspectors of income tax. we also direct that the respondents shall comply with the aforesaid directions by passing appropriate orders within a period of two months. 10.  there shall be no order as to costs.
Judgment:

G. George Paracken, Member (J).

1. Applicants in this Original Application are Technical Assistants (œTAs? for short) in the Directorate of Organisation and Management (œDOMS? for short) under the Department of Revenue and Banking. Their grievance is that till 21.04.2004, they were at par with the Income Tax Inspectors under the Department of Revenue and up to 15.09.2006 with the Assistants of Central Secretariat Service (œCSS? for short). While upgrading the pay scales of Income Tax Inspectors of Department of Revenue and the Assistants of CSS, their pay scale has not been revised.

2. The brief facts of the case are that the Applicants were appointed in terms of Directorate of Organisation and Management (Group œC? and Group œD?) Recruitment Rules, 1977. According to the said Rules, the pay scale of TAs was in the scale of Rs.550-25-75-750-EB-30-900 and the method of recruitment was by promotion failing which by transfer on deputation. In the case of promotion, it was made from among the grade of Programme Assistants and Stenographer (S.G.) possessing a Bachelors degree or equivalent in Commerce/Statistics/Economics/Mathematics and who have undergone training in work-study techniques and with 3 years service in the respective grades in the Directorate. As far as transfer/deputation is concerned, the appointments were made from the Assistants of the CSS/Income Tax Inspectors/Head Clerks or UDCs of I.T. Department a Bachelors degree or equivalent in Commerce/Statistics/Economics/Mathematics and who have undergone training in work-study techniques and with 3 years service in the grade. Thus, the Assistants of CSS and the Inspectors in the Income Tax used to seek deputation to the aforesaid post of TAs till the Recruitment Rules in respect of Inspectors in the Income Tax and the Assistants of CSS were revised. The appointments of the Inspectors in the Income Tax were governed by the Income Tax Department (Inspector) Recruitment Rules, 1969 as amended by the Income Tax Department (Inspector) Recruitment Rules, 1986 notified on 08.09.1986. Their pay scale was Rs.425-15-500-EB-15-560-20-700-EB-25-800 and method of recruitment was 33 1/3% of vacancies to be filled up by direct recruitment through a competitive examination and the remaining by promotion. As far as promotion was concerned, Upper Division Clerks (œUDCs? for short) and higher ministerial grades, Stenographers (OG) and Stenographers (Selection Grade) with three years service in the respective grades who have qualified in the departmental examination for Inspectors in the Income Tax were eligible. As far as the Assistants in CSS were concerned, they are governed by the Central Secretariat Service Rules. Thus, after the recommendation of the 5th CPC, the pay scale of the Assistants in CSS/Income Tax Inspectors/TAs in DOMS was in the same scale, i.e., Rs.5500-175-9000. Thereafter, the scale of Inspectors in the Income Tax has been upgraded vide F.No.A-41015/59/2002-Ad.VII dated from Rs.5500-175-9000 to Rs.6500-200-10500. As per OM No.20/29/2006-SS II(CS-1) dated 25.09.2006, the pay of the Assistants of CSS has also been upgraded from Rs.5500-175-9000 to Rs.6500-10500. However, no such increase in the pay scale has been given to the Applicants who are TAs. This has created anomaly as the pay scale of Assistants in CSS was analogous to the pay scale of TAs in the Directorate of Income Tax. According to the Applicants, when the TAs in DOMS, Assistants in CSS and the Inspectors in the Income Tax were having the analogous pay scale till the revision of the pay scales of the Inspectors in the Income Tax Department and Assistants in CSS, the Respondents ought to have upgraded the pay scale of the TAs in DOMS also to the same grade. This is particularly so, as the pay scale of the TAs in DOMS were higher than the pay scale of the Inspectors of Income Tax and Assistants of CSS during the period of the second, third and fourth Pay Commissions. They have, therefore, submitted that when the TAs were in a higher pedestal up to 4th Pay Commission and when the anomalous situation has occurred by the revision of the pay scale of the Assistants of CSS and the Inspectors of Income Tax, the Respondents should have rectified the same and brought the pay scale of the TAs in DOMS at least at par with the Assistants of CSS and Inspectors of Income Tax, if not higher. As per the recommendation of the 6th Pay Commission, the pay band and the Grade Pay of the post of TAs in DOMS were made at par with those of Inspectors of Income Tax, i.e., pay band of Rs.9300-34800 and Grade Pay of Rs.4200. However, the anomalous situation has again crept in on account of the subsequent upgradation of the Grade Pay of Assistants of CSS and Inspectors of Income Tax to Rs.4600.

2. The Applicants have made representation to the Respondents in October, 2006 bringing out the aforesaid discrimination, disparity and anomaly in their pay scales vis-`-vis the Assistants of CSS and the Inspectors of Income Tax. Further, according to the Applicants, the Director of Income Tax (OandMS) was convinced regarding the aforesaid anomalous position and recommended for up-gradation of the pay scale of the Applicants at par with Assistants of CSS and the Income Tax Inspectors vide his letter F.No.A-41015/86-2006-AD.VII dated 27.11.2006. However, no decision was taken on the said recommendation by the Ministry of Finance only on the ground that the 6th Pay Commission has already been constituted and the Department/Ministry could advice to all concerned Associations to submit their recommendations directly to the Commission. Accordingly, the case of the TAs in DOMS has been recommended to the 6th Pay Commission by the Under Secretary, Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes vide letter F.No.A-41015/862006-AD.VII dated 22.12.2006 based on the recommendations of the DIT(OandMS) vide its letter No.F.30/01/2006-AD/DOMS/1547 dated 06.11.2006. But the Commission did not consider those recommendations. However, vide Office Memorandum No.F.1.1.2008-IC dated 13.11.2008, the Department of Expenditure conveyed the decision of the 6th Pay Commission recommending merger of three pay scales of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 and replaced them by the revised pay scale of Grade Pay of Rs.4200/- in PB-2. The Commissions recommendations was that on account of merger of three pay scales, some posts which may be constituted feeder and promotion grade would come to lie in an identical grade. The Commission has also given specific recommendations in its report granting higher grade pay of Rs.4600/- to some categories of those posts. As regards other posts, the Commission recommended that first it will be seen if the posts in these three scales can be merged without any functional disturbance and if possible, the same should be done. Further, the Commission recommended that if it is not feasible to merge the posts in those pay scales due to functional consideration, the post in the scales of Rs.5000-8000 and Rs.5500-9000 should be merged with the posts in the scale of Rs.6500-10500 being upgraded to the next higher grade in PB-2 with Grade Pay of Rs.4600/- corresponding to the pre-revised scale of Rs.7450-11500. In case a post already exists in the pay scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the post in the scale of Rs.7450-11500. The aforesaid recommendation have been notified vide para (ii) Section-I in Parts œB? and œC? of the First Schedule to the CCS(RP) Rules, 2008. Thereafter, a number of references were made proposing up-gradation of the posts which were in the pre-revised pay scale of Rs.6500-10500 as on 01.01.2006 by granting them the grade pay of Rs.4600/- in PB-2. Thereafter the Government has decided that the posts which were in the pre-revised scale of Rs.6500-10500 as on 0101.2006 and which were granted the normal replacement pay structure of grade pay of Rs.4200/- in the pay band PB-2, will be granted Grade Pay of Rs.4600/- in the Pay Band PB-2 corresponding to the pre-revised scale of Rs.7450-11500 w.e.f. 01.01.2006.

3.   On the basis of the aforesaid order, the Director of Income Tax (DOMS) examined the representations submitted by the Applicants and recommended, vide their letter dated 08.04.2010, for the upgradation of the grade pay of the post of TAs. According to them, the claim of the TAs for the upgradation of the grade pay of Rs.4200/- to Rs.4600/- was fully justified for the following grounds:-

œ(a)The pay scales of the post of Technical Assistant in DOMS was higher than the pay scale of Inspector of Income Tax and Assistant of CSS in the 2nd, 3rd and 4th Pay Commissions. The pay scale of all these three posts were made at par by the 5th Pay Commission. Subsequently, the pay scales of Inspector of Income Tax and Assistant of CSS were upgraded to Rs.6500-10500/-. The 6th CPC merged the pre-revised pay scales of Rs.5500-9000 and Rs.6500-10500/- and placed in PB-2 with Grade Pay of Rs.4200. Now the Grade Pay of Rs.4200/-, granted to the pre-revised pay scale of Rs.6500-10500/-, has been upgraded to Rs.4600/- vide Department of Expenditure OM F.No.1/1/2008-IC dated 13.11.2009. Thus, the upgradation of the Grade Pay of Inspectors of Income Tax and Assistants of CSS has led to an anomaly in so far as the TAs of DOMS are concerned. The pay scale of TAs of DOMS, which was higher than the pay scales of Inspectors of Income Tax and Assistants of CSS in the 4th Pay Commission, had become lower which has resulting to anomaly and discontentment among the TAs. However, the anomaly has further crept in on account of subsequent upgradation of Grade Pay of Rs.4600/- for the posts of Assistants in CSS and Income Tax Inspectors of Income Tax vide OM F.No.1/1/2008-IC dated 13.11.2009 of Department of Expenditure, Ministry of Finance. This anomaly needs to be rectified urgently. The analytical study of the pay scales of Technical Assistants, Inspectors of Income Tax and Assistants of CSS which also substantiates the genuine demand of upgradation of Grade Pay of Technical Assistants, is given below:-

Date of effect Pay scale of Technical Assistant (DOMS) Pay scale of Inspector of Income Tax Pay scale of Assistant in CSS Remarks 1.1.1962 (IInd Pay Commission) Rs.325-575 Rs.210-485 210-485 The pay scale of TA was higher than ITI and Assistant of CSS 1.1.1973 (IIIrd Pay Commission) Rs.550-900 Rs.425-800 Rs.425-800The pay scale of TA was higher than ITI and Assistant of CSS    1.1.1986 (IVth Pay Commission)        Rs.1640-2900 Rs.1640-2900 Rs.1640-2900 The pay scale of ITI and Assistant of CSS were upgraded and brought at par with TA 1.1.1996 (Vth Pay Commission)  Rs.5000-9000 Rs.5000-9000 Rs.5000-9000 The pay scales are retained at par with ITI and Assistant of CSS       21.04.2004 Rs.5000-9000 Rs.6500-10500 Rs.5000-9000       The pay scale of ITI was upgraded vide CBDT letter F.No.A-41015/59/2002-Ad.VII dated 22.04.2004 (copy enclosed and became higher than TA) 25.09.2006 Rs.5500-9000 Rs.6500-10500       Rs.6500-10500 The pay scale of Assistant of CSS was also upgraded vide DOPandT OM No.20/29/206-CS.II(CS-I)dated 25.09.2006 (copy enclosed and became higher than TA)      1.1.2006 (VIth Pay Commission)     PB-2 (Rs.9300-34800) and Grade Pay Rs.4200/-PB-2 (Rs.9300-34800) and Grade Pay Rs.4200/- PB-2 (Rs.9300-34800) and Grade Pay Rs.4200/- The pay scales of TA, ITI and Assistant of CSS were kept at par 1.1.2008 Department of Expenditure (As per OM F.No.1/1/2008-IC dated 13.11.2009)PB-2 (Rs.9300-34800) and Grade Pay Rs.4200/-       PB-2 (Rs.9300-34800) and Grade Pay Rs.4600/-  PB-2 (Rs.9300-34800) and Grade Pay Rs.4600/-      The Grade Pay of ITI/Assistant of CSS were made higher than that of TA.   b) According to the Recruitment Rules for the posts of Technical Assistants in DOMS are to be filled by promotion or transfer/ deputation. The posts by promotion are filled in from the grade of Programme Assistants and Stenographers (OG) of this Directorate possessing a Bachelors degree or equivalent in Commerce/Statistics/Economics/Mathematics and who have undergone training in work-study techniques and with 3 years service in the respective grades in the Directorate. The posts on deputation/transfer are filled from the Assistants of the CSS/Income Tax /Department having at least 3 years service in their respective grades, possessing a Bachelors degree or equivalent in Commerce/Statistics/Economics/Mathematics; and have undergone training in work-study techniques. The duty list of Technical Assistants also clearly explains the importance of the post and requirement of skill and specialized knowledge. Since a majority of the posts of TAs in DOMS were filled by transfer/ deputation by Inspectors of Income Tax or Assistants of CSS, it would be highly anomalous if the Grade Pay of Technical Assistant is kept below the Grade Pay of the posts of Inspectors of Income Tax and Assistants of CSS as no Income Tax Inspector or Assistant of CSS, having Grade Pay of Rs.4600/-, would come on deputation to a lower Grade Pay of Rs.4200/- of the post of Technical Assistant; as a result the posts of Technical Assistant will remain unfilled?.

4. However, the Department of Expenditure, vide its UO Note No.15(21)/E.III (B)/2010 dated 12.10.2010, rejected the proposal on the following grounds:-

(i) As per the departments OM dated 13.11.2009, the posts which were in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of Rs.4200/- in PB-2 will be granted grade pay of Rs.4600/- in PB-2. The post of Technical Assistant in DOMS was in the pre-revised scale of Rs.5500-9000 and thus is not covered under the OM.

(ii)  As per the departments OM dated 16.11.2009, it was decided to extend the pay structure of grade pay of Rs.4600/- in PB-2 to Assistants of CSS, AFHQ, IFS œB? and Railway Board Secretariat Service w.e.f. 01.01.2006. Further, one of the reasons due to which Assistants of CSS have been granted grade pay of Rs.4600/- is the fact that there is an element of direct recruitment to the post and that too, through All India Competitive Examination. In the instant proposal, the mode of recruitment to the post of Technical Assistant is through promotion failing which by deputation. Thus the post of TA is not covered under the OM dated 16.11.2009.

(iii)  As per the RRs of the post of Technical Assistant in DOMS, the method of recruitment is by promotion failing which by transfer on deputation. Thus filling up the post on deputation is not the primary method of recruitment. Also, the field of selection on deputation is not limited to Assistants of CSS and Inspectors of Income Tax, the Head Clerks/UDCs are also eligible to apply for the post?. 5. The Respondents have filed the reply. According to them, as per the Recruitment Rules of Assistant in CSS and Inspectors in Central Board of Direct Taxes, there is an element of direct recruitment and that too, through an all India Competitive Examination whereas for Technical Assistants in DOMS the prescribed method of recruitment is by promotion failing which by transfer on deputation. Hence, the posts of Assistants in CSS and Inspector of Income Tax in CBDT cannot be equated with DOMS. They have also stated that no anomaly has been created in the matter as submitted by the Applicants. Further, according to them, as per the Department of Expenditures OM F.No.1/1/2008-IC dated 13.11.2009, the posts which were in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 and which were granted normal replacement pay structure of Rs.4200/- in PB-2 will be granted grade pay of Rs.4600/- in PB-2. The post of TAs in DOMS was in the pre-revised pay scale of Rs.5500-9000 and thus is not covered under the said OM.

6.   The learned counsel for the Respondents Shri V.P. Uppal has relied upon the judgment of the Apex Court in Union of India and Others Vs. Hiranmoy Sen and Others 2008 (1) SCC 630 wherein the parity in employment and equal pay for equal work has been considered. The said judgment has also relied upon the earlier judgment of the Apex Court in the case of S.C. Chandra Vs. State of Jharkhand 2007 (8) SCC 279 wherein it has been held if posts A and post B have been carrying the same pay scales, merely because the pay scale of post A has been increased that by itself cannot result in increase in the pay scale of post B to the same level. It is entirely on the Government and the authorities to fix the pay scales and to decide whether the pay scale of post B should be increased or not. The learned counsel for the Respondents has also submitted that in the case of Hiranmoy Sen and Others case (supra), unless there is a complete and wholesale identity between the two groups, the principle of equal pay for equal work cannot be applied. The relevant part reads as under:-

œ4.  This Court in S.C. Chandra Vs. State of Jharkhand 2007(8) SCC 279 has held that the Court cannot fix pay scales as that is purely executive function. In the aforesaid decision one of us (Markandey Katju, J.) has discussed in detail the principle of equal pay for equal work and has observed that the said principle has been considerably watered down in recent decisions of this Court, and it is not applied unless there is a complete and wholesale identity between the two groups, and even there the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting the higher pay scale. The entire case law on the subject has been discussed in the said decision. Following the aforesaid decision in S.C. Chandra case this appeal has to be allowed. It cannot be said that there is a complete and wholesale identity between the Senior Auditors in the Office of Accountant General, Assam and Meghalaya and Assistants in the Central Secretariat.

5.   Learned counsel for the respondents submitted that the auditors and assistants have been historically treated on a par in the matter of pay scales. Although this fact has been denied by the appellant, we are of the opinion that even if it is correct, that will not be of any help to the respondents. To give an illustration, if post A and post B have been carrying the same pay scales, merely because the pay scale of post A has been increased that by itself cannot result in increase in the pay scale of post B to the same level. It is entirely on the Government and the authorities to fix the pay scales and to decide whether the pay scale of post B should be increased or not. The judiciary must exercise self- restraint and not encroach into the executive or legislative domain?.

7.   The learned counsel for the Respondents has also relied upon a judgment of the co-ordinate Bench of this Tribunal in OA No.2380/2011 Zamir Hasan Khan and Others Vs. Union of India and Others decided on 29.01.2013. The Applicants in the said OA were working as Administrative Officers (Grade-III and Grade-II) and Private Secretaries/Senior Private Secretaries in the gazetted Group œB? of the Income Tax Department. Their grievance was that the Respondents were not extending the grade pay of Rs.4800/- in Pay Band-2 and not granting them the grade pay of Rs.5400/- after completion of 4 years of substantive service, as has been allowed to Income Tax Officers, Section Officers of CSS and Private Secretaries in the CSSS. In the said order this Tribunal has followed the principle laid down by the Apex Court that for claim for parity of pay scale to be sustained, not only the nomenclature has to be compared but duties, functions, powers, responsibilities and various criteria like promotional avenues, availability of speeded promotion in the offices other than the Secretariat etc. have also to be considered.

8.   We have heard the learned counsel for the Applicants Shri Manjeet Singh Ahluwalia and the learned counsel for the Respondents Shri V.P. Uppal. In our considered view, the issue in this case is not that of parity of pay scales or complete and wholesale identity in two different groups. From the facts of the case itself, it is quite clear that among the three groups of employees, namely, the TAs in DOMS, Inspectors in the Income Tax and Assistants in the CSS, the TAs in DOMS was on a very high pedestal during the period from 01.01.1972 to 31.12.1985, i.e., the period of the Second and Third Pay Commissions. While the TAs in DOMS was getting pay scale of Rs.325-575/Rs.550-900, the Inspectors of Income Tax and Assistants in CSS were getting comparatively lower pay scale of Rs.210-485/Rs.425-800. Since the pay scales of the TAs in the DOMs was at the higher level and the method of recruitment was by promotion failing which by transfer on deputation, the said post was not brought at par with the Assistants of CSS and the Inspectors of Income Tax themselves. In fact, the Recruitment Rules for the post of TAs in DOMS says that it is to be filled up on transfer on deputation from among the Assistants of CSS and Inspectors of Income Tax also. However, the position has changed from 01.01.1986. The pay scales of all the three categories were fixed at Rs.1640-2900 w.e.f. 01.01.1986 and also all the three groups were getting the same pay scale of Rs.5500-9000. However, the pay scales of Inspectors of Income Tax were upgraded by the CBDT vide their letter No.A-41015/59/2002-Ad.VII dated 22.04.2004 and their scale of pay was upgraded from Rs.5500-9000 to Rs.6500-10500. Later on, vide DOPandT OM No.20/29/2006-CS.II(CS-I) dated 25.09.2006, the pay scale of Assistants of CSS have also been increased from Rs.5500-9000 to Rs.6500-10500. There was absolutely no reason as to why the pay scale of the Applicants has also not been revised from Rs.5500-9000 to Rs.6500-10500 as in the case of Inspectors of Income Tax and Assistants of CSS. The Respondents themselves have admitted that the up-gradation of the Grade Pay of Inspectors of Income Tax and Assistants of CSS has led to an anomaly in so far as the TAs of DOMS is concerned. They have also stated that the pay scale of TAs in DOMS was higher than that the Inspectors of Income Tax and Assistants of CSS. Again, they have admitted that the anomalous situation has further widened on account of subsequent upgradation of Grade Pay of Rs.4600/- for the post of Assistants in CSS and Inspectors of Income Tax. Therefore, the anomaly needs to be rectified. They have also admitted that since a majority of the posts of TAs in DOMS were filled by transfer/ deputation by Inspectors of Income Tax or Assistants of CSS, it would be highly anomalous situation if the Grade Pay of TAs is kept below the Grade Pay of the posts of Inspectors of Income Tax and Assistants of CSS having Grade Pay of Rs.4600/- as they would not come on deputation to a lower Grade Pay of Rs.4200/- of the post of TAs. However, the Department of Expenditure did not agree to the aforesaid recommendation of the Respondent No.1, i.e. Director, Directorate of Income Tax (Organisation and Management Services) stating that as per the Departments OM 13.11.2009, the posts which were in the pre-revised scale of Rs.6500-10500 as on 01.01.2006 and which were granted the normal replacement pay structure of Rs.4200/- in PB-2 will be granted Grade Pay of Rs.4600/- in PB-2. They have also stated that the post of TAs in DOMS was in the pre-revised scale of Rs.5500-9000 and thus it is not covered under the aforesaid OM. In our considered view, the Department of Expenditure did not appreciate the factual background of the scales of pay granted to the TAs of DOMS, Inspectors of Income Tax and Assistants in CSS. They have also not appreciated the question that it is not a parity of pay scale but it was simply an anomalous situation. It is an undisputed position that according to the Recruitment Rules of TAs in DOMS those posts was filled up from among the Assistants of CSS/Inspectors of Income Tax, as the pay scale of the latter two groups were much lower than that of the TAs. By the aforesaid anomalous situation, the Respondents have rendered the aforesaid Recruitment Rules itself infructuous. By granting the higher pay scale to the Inspectors of Income Tax and the Assistants of CSS, the deputation posts of the TAs can no more be filled up from the Assistants of CSS and Inspectors of Income Tax.

9.   Therefore, in our considered view, the rejection of the claim of the Applicants for the pay scale of Rs.6500-10500 by the Ministry of Finance, Department of Expenditure is highly a mechanical exercise of its powers. We also hold that the issue involved in this case is not parity of pay scale though the Applicants have mentioned so in the prayer clause but from all the correspondence between the Applicants Department and the Ministry of Finance shows that it is a case of anomalous situation created by not increasing the pay scale of the Applicants when the pay scales of the Inspectors of Income Tax and Assistants of CSS have been increased with effect from 22.04.2004 and 25.09.2006 respectively. We, in the above facts and circumstances of the case, allow this OA and quash and set aside the impugned Annexure A-1 letter No.23.11.2010 addressed to the Director, Directorate of Income Tax (Organisation and Management Services) vide UO Note No.15(21)/E.III(B)/2010 dated 12.10.2010 whereby the proposal for upgradation of pay scale has been rejected. Consequently, we direct the Respondents to grant the pay scale of Rs.6500-10500 to the Applicants who are Technical Assistants in Directorate of Organisation and Management with effect from 21.04.2004, i.e., the date from which the Inspectors of Income Tax were granted the said scale by the Central Board of Direct Taxes. For the same reason, we also direct the Respondents to grant the Grade Pay of Rs.4600/- in the scale of Rs.9300-34800 (PB-2) as in the case of the Inspectors of Income Tax and Assistants of CSS with effect from 01.01.2008 granted vide OM No.F.1/1/2008-IC dated 13.11.2009. However, as regards the payment of arrears are concerned, we restrict the same with effect from 01.01.2006, i.e., the date from which the aforesaid scale has been granted to the Inspectors of Income Tax. We also direct that the Respondents shall comply with the aforesaid directions by passing appropriate orders within a period of two months.

10.  There shall be no order as to costs.