N. Chandan and Others Vs. Union of India, Through, Cabinet Secretary, Cabinet Secretariat, New Delhi and Others - Court Judgment

Dr. Ramesh Chandra Panda, Member (A)

1. The applicants ten in number have joined together in the present OA and are seeking following relief(s):-

“(i) Quash and set aside the Order dated 31.03.2010, 16.4.2010, 28.4.2010 and Order dated 15.5.2009.

(ii) Declare the date of implementation of the pay scale of Rs.8000-13500 as 1.1.2006 (instead of 1.1.1996) vide Order dated 9.7.2009 as discriminatory and arbitrary.

(iii) Direct the Respondents to grant the Applicants the pay scale of Rs.8000-13500 from 1.1.1996 or on completion of 4 years in the scale of Rs.6500-10500 which ever is later (actually from 03.10.2003 and notionally on completion of 4 years)

(iv) Direct the Respondents to grant the Applicants the consequential benefits viz arrears of pay and interest thereon.

(v) Any other direction which this Hon’ble Tribunal may be pleased to pass under the facts and circumstances of the case including direction granting cost of litigation to the applicant.”

2. Brief facts brought out in the OA reveal that the applicants at the relevant time were Section Officers (SOs) and Private Secretaries (PSs) belonging to the Aviation Research Centre (ARC) of the Directorate General of Security (DSG) of the Cabinet Secretariat. Vide order dated 13.11.2003 (Annexure-A4) and dated 25.1.2006 (Annexure-A5) the SOs and PSs belonging to the Central Secretariat Service (CSS) and Central Secretariat Stenographers Service (CSSS) who have put in four years of service in pay scale of Rs.6500-10500 were granted non-functional scale of Rs.8000-13500 notionally w.e.f. 01.01.1996 and actually w.e.f. 03.10.2003. Subsequently, the said pay scale was extended to many organizations which had historical parity with the pay scales of SOs/PSs of CSS/CSSS. Those organizations are Railway Board, Ministry of External Affairs, Armed Forces Head Quarters, Cabinet Secretariat (RAW), NHRC, CVC etc. It is averred that all the applicants were recruited by the Cabinet Secretariat/DGS Coordination Cell as Stenographers/PAs/ LDCs/ Assistants and subsequently promoted to the post of SOs/PSs and were posted in the ARC Wing of DGS. It is the case of the applicants that DGS had four wings viz Special Service Bureau [Now Sashastra Seema Bal (SSB)] Aviation Research Centre (ARC), Special Frontier Force (SFF) and Chief Inspectorate of Armaments (CIOA). After SSB and CIOA were transferred to the Ministry of Home Affairs vide order dated 15.01.2001, the remaining two wings i.e. SSF and ARC continued to be with the DGS of Cabinet Secretariat. It was the claim of the applicants that they were getting same pay scale along with their counter parts of the DGS after 3rd CPC (Rs.650-1200); w.e.f. 01.01.1986 after the 4th CPC (Rs.2000-3500) and w.e.f. 01.01.1996 i.e the 5th CPC (Rs.Rs.6500-10500). The above historical pay parity was disturbed by the respondents granting pay scale of Rs.8000-13500 to their counterparts in CSS and CSSS with 4 years of service in that grade by the OM dated 13.11.2003 (Annexure-A4) and letter dated 25.01.2006 (Annexure-A5) and the benefit was notionally w.e.f. 01.01.1996 and with financial effect from 03.10.2003. Their claim is that they and their counterparts in Research and Analysis Wing (RandAW) belong to a homogeneous class working in the Cabinet Secretariat of two security organizations viz ARC ad RandAW. The non-functional scale of Rs.8000-13500 has been implemented for their counterparts in RandAW though pay parity was denied to the PSs and SOs of RandAW who were similarly placed, due to their case was adjudicated by the Tribunal 19.1.2009 (Anneuxre-A9) in OA No.645/2007, the pay parity for them was maintained with CSS and CSSS. It is the case of the applicant that on their representation dated 28.7.2005 and thereafter (Annexure-A10) they have been told vide letter dated 25.1.2006 (page 36) that once their counterpart’s case is decided by the Tribunal, similar pay parity will be extended to them w.e.f. 01.01.1996. Further, it is averred that the 6th CPC which came into force w.e.f. 01.01.2006, their counterparts in CSS/CSSS were granted pay parity i.e. PB-2 with Grade Pay of Rs.4800 and after four years the non-functional pay in PB-3 with Grade Pay of Rs.5400. Initially the applicants were denied the benefits but vide order dated 09.07.2009 (Anneuxre-A3), the SOs/PSs were granted replacement pay bands and Grade Pay of non-functional pay scales of Rs.8000-275-13500 (pre-revised) and grant of Grade Pay of Rs.5400 in PB-3 to them (in ARC and SFF), who have completed four years of approved Government service in that grade as on 01.01.2006 and thereafter. Though their grievances have been redressed for 6th CPC, their grievance is still subsisting in the sense that they have been deprived of the pay parity in the 5th CPC i.e. with effect from 01.01.1996. They are before this Tribunal in the instant OA seeking redressal of this grievance.

3. Shri Padma Kumar S., learned counsel representing the applicant would contend that the applicants belong to the homogenous class of SOs and PSs in the Cabinet Secretariat and have got historical pay parity with their counterparts in all through even in 5th CPC period. His contention is that pay parity for the applicants has been accepted by the Government w.e.f. 01.01.2006 vide order dated 9.7.2009. But during the 5th CPC period, their parity was disturbed and were not granted the benefits of the orders dated 13.11.2003 and 25.1.2006. His contention is that it is no longer legal and rational as the replacement scale of the same pay scale (Rs.8000-13500 - pre-revised) has been granted to the applicants with effect from 01.01.2006. In this regard, he submits that neither the intelligible differentiation test is sustainable, nor the nexus would succeed. It is further contended that the discrimination meted out to the applicants is unsustainable. Shri Padma Kumar places his reliance on the judgment of Hon’ble Supreme court in Union of India and Others Versus Debashis Kar and Others [1995-SCC (LandS) 1303] to support his contention that there should be consistent decision in pay parity.

4. Per contra, the respondents, on receipt of notice from the Tribunal have opposed the grounds taken by the applicants and have filed their counter reply affidavit in September, 2011. Shri S.M. Zulfiqar Alam, learned counsel would submit that Hon’ble Supreme Court in a catena of judgments held that the Tribunal should not decide the question of pay scales and he particularly placed his reliance on the judgment in Union of India and Ors. Versus P.V. Hariharan [(CA 7127/1993) 1997 SCC (LandS) 38] where it had cautioned the Tribunals in interfering with the pay scales since it was a serious matter and has a cascading effect in several other categories. He drew attention to the following observation:-

“Before parting with the appeals we feel to impelled to make a few observations. Over the past few weeks, we have come across several matters decided by Administrative Tribunal on the question of pay scales. We have noticed that quite often the tribunals are without beings conscious of the fact that fixation of pay is not their function. It is the function of the government within normally acts on the recommendations of a pay commission.”

Shri Zulfiqar Alam cited judgment in another case of similar nature where the Apex Court held in Secretary, Finance Department and Others Versus West Bengal Registration Service Association and Other [JT 1992 (2) SC 27] that the parameters for interference of the court in such matters would be rather limited. He drew our attention to the judgment in M.V.R. Rao and Others Versus Union of India and Ors. [ATFBJ Page 260] where it was held that ‘in terms of maintenance of secrecy, work load, etc. the job performed by the Central Secretariat staff is different from those performed by non central secretariat staff, therefore different pay scale in order’. Relying on these judgments, he would contend that the case of the applicants was not a case to be adjudicated upon by the Tribunal but the government should decide the matter in the given circumstances, otherwise it would open Pandara box and there would be a spurt of staffers seeking parity of pay scales. He, therefore, urges that the prayer of the applicants should be rejected.

5. We have thoughtfully and carefully considered the above contentions of the parties and with the help of their counsel, we have perused the pleadings and relied on judgments.

6. Before we may examine the issues raised in the OA, it is apt for us to get guidance of legally well settled position in the matters of pay parity, historical parity of pay scales and equal pay for equal work. Equal pay for equal work has assumed the status of fundamental right in service jurisprudence having regard to the constitutional mandate of equality in Articles 14 and 16 of the Constitution of India, as held by Hon’ble Supreme Court in Grih Kalyan Kendra Workers' Union Versus Union of India, [(1991) 1 SCC 619], and also Union of India Versus Dineshan K.K., [(2008) 1 SCC 586] and State of Kerala Versus B. Renjith Kumar [(2008) 12 SCC 219]. However, as observed by the Hon’ble Apex Court in State of Orissa Versus Balaram Sahu [(2003) 1 SCC 250] pay parity would depend upon not only on the nature or volume of work but also on quality of work as regards the reliability and responsibility as well. Different pay scales may be prescribed on the basis of such reliability and responsibility. This ratio has also been reiterated by Hon’ble Apex Court in State of Bihar Versus Bihar State ‘Plus-2’ Lecturers Assns.,[(2008) 7 SCC 231]. Moreover, in S.C. Chandra and Others Versus State of Jharkhand and Others [2007-8-SCC-279], the Honourable Supreme Court has exhaustibly dealt with the issue of pay parity and powers of the Courts and Tribunal to interfere in the matters of pay fixation and if so on what grounds. It is appropriate for us to take extract of the following relevant paragraphs of the said judgment:

"24. It may be mentioned that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs and Pharmacheuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408.

25. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book and the Spirit of Laws' still broadly holds the field in India today. Thus, in Asif Hameed vs. State of Jammu and Kashmir, [AIR 1989 SC 1899] a three Judge bench of this Court observed (vide paragraphs 17 to 19):

"17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.

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19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers."

26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).

27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal vs. Tarun K. Roy and others (2004) 1 SCC 347.

28. Similarly, in State of Haryana and another vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the principle of equal pay for equal work was considered in great detail. In paragraphs 9 and 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and others vs. Pradip Kumar Dey (2000) 8 SCC 580.”

7. Guided by the law set in various judgments of the Hon’ble Apex court, we would like to identify the principles which run through those judgments on the pay parity controversy. Those are as follows:-

(a) pay scale fixation is purely executive function and courts and Tribunals should not fix the pay scales;

(b) the principle of equal pay for equal work should not be applied unless there is a complete and wholesale identity between the two groups;

(c) even to find out the wholesale and complete identity, the best forum is an expert body like Pay Commission;

(d) the Pay Commission which goes into at great depth on the pay anomalies and the issues of pay parity undertake in depth examination from various angles with full facts on the issues, is the appropriate authority to decide such matters;

(e) it is the claimants of equality to substantiate the basis of equivalence and resultant discrimination;

(f) even if the persons holding same post doing similar work but if the mode of recruitment, qualification, promotion etc. are different, pay parity would not be admissible; and

(g) persons doing the same work in different organizations may have different responsibilities, reliability, confidentiality which are sufficient reasons for pay disparity;

8. Admittedly, there existed pay parity of the SOs/PSs in ARC with SOs/PSs in CSS/CSSS and other Organisations in the 2nd, 3rd and 4th CPC recommendations. Even, initially there existed pay parity in the 5th CPC. The said pay parity was not allowed by the executive. By the OM dated 13.11.2003 and letter dated 25.1.2006 pay disparity was brought in favour of the SOs/PSs in CSS/CSSS and many other organizations. The SOs/PSs in ARC did not get the said pay scale though SOs and PSs in RandAW got the benefits. It is not in dispute that the respondents by order dated 9.7.2009 granted non-functional pay scales to SOs and PSs in DGS including ARC. The said order reads as follows:-

“No.1/35/2009-E.A.I-2558

GOVERNMENT OF INDIA

CABINET SECRETARIAT

BikanerHouse (Annexe)

Shahjahan Road,

O R D E R New Delhi, 9 JUL 2009

Sub: Grant of non-functional pay scale of Rs.8000-275-13500/- (pre-revised to Section Officers/Private Secretaries of DGS.

Consequent upon the grant of non-functional pay scale of Rs.8000-275-13500/- (pre-revised) to Section Officers/Private Secretaries of DGS, approved by Ministry of Finance vide their UO No.10/1/2008-IC dated 11.11.2008, sanction of the President is hereby conveyed to the grant of Grade Pay of Rs.5400/- in PB-3 to Section Officers/Private Secretaries of DGS (ARC and SFF) who have completed 4 years approved Government service in that grade as on 01.01.2006 and there after.

2. Grant of non-functional scale of Rs.8000-13500/- (pre-revised) with corresponding Grade Pay of Rs.5400/- (PB-3) is subject to the following parameters:

The non-functional scale of Rs.8000-13500/- (pre-revised) is admissible to Section Officer/Private Secretaries of ARC and SFF on completion of four years of approved service in that grade, subject to their vigilance clearance.

The Section Officer/Private Secretaries, who are granted this non-functional pay scale of Rs.8000-275-13500/- (pre-revised) with corresponding Grade Pay of Rs.5400/- in PB-3, will continue to remain in Group ‘B’ Gazetted and their eligibility for promotion to the grade of Under Secretary/ Principal Private Secretary, will be reckoned on the basis of total period of service spent in both the pay scale/Grade Pay of Section Officer/Private Secretary together.

Officers who are placed in the above non-functional pay scale will be entitled to the benefits of pay fixation under FR22(1)(a)(2).

2. This issues with the concurrence of Ministry of Finance (Department of Expenditure) vide U.O. No.10/1/2008-IC dated 11.11.2008 and in consultation with Integrated Finance vide their Dy. No.678/IFD dated 08.07.2009.

(Sumati Kumar)

Director to the Govt. of India

Director ARC

Director of Accounts, Cabinet Secretariat

Director-Finance (Security), Cabinet Secretariat

Guard File.”

9. In response to the para no.4.16 of the OA the respondents submitted that as per CCS (RP) Rules, 2008 (Annexure-A8), the Non-Functional Selection Grade of Rs.5400/- in Pay Band PB-3 had been extended to office staff in Secretariat Services and to those organization/services which had a historical parity with CSS/CSSS such as services like AFHQSS/AFHQSSS/RBSS Ministerial/ Secretariat posts in Ministries/Departments organizations MEA, Ministry of Parliamentary Affairs, CVC, UPSC. The respondents have differentiated ARC to be a non Secretariat Organisation but have acknowledged PSs of ARC to have historical parity. This parity aspect has been admitted. We may refer to the 6th Central Pay Commission at para 7.5.13 of its report where 6th CPC has recommended ‘accordingly, all posts presently in the pay scale of Rs.6500-10500/- in various cadres of RandAW shall be placed in the revised pay band PB-2 with FP of Rs.4800/- or assigning to the pre-revised pay scale of Rs.7500-12000/-. A similar dispensation shall also be extended to various organizations in DG(S) and SPG in respect of all posts that have established parity with the post of Section Officer.’ In view of the said recommendation, the replacement scale in PB-2 in GP Rs.4800/- and non-functional scale of Rs.8000-13500/- w.e.f. 01.01.2006 was granted to SOs/PSs of ARC vide Govt. of India order dated 09.7.2009 (Annexure-A3). Since the grant of GP of Rs.5400/- in PB-3 to SO/PS of ARC w.e.f. 01.01.2006 was based on the specific recommendations of 6th CPC and 6th CPC came into effect w.e.f. 01.01.2006. The respondents have restricted the grant of non-functional scale to be applicable w.e.f. 01.01.2006. Respondents have not agreed to the proposal of grant of the non-functional pay scale of Rs.8000-13500/- to Section Officers/Private Secretaries of ARC with retrospective effect from 01.01.1996 on notional basis with actual benefits on account of such relaxation of pay w.e.f. 03.10.2003 on completion of four years of approved service in the grade. The above aspect reveals arbitrariness and discrimination on the part of the Government.

10. The applicants had parity in their pay scales all through and have got parity in the 6th CPC. The Pay Commissions have granted pay parity to SOs and PSs of ARC. Only the executives while granting higher pay scale (Rs.8000-13500) to the SOs/PSs of CSS/CSSS and other organizations ignored the claim of SOs/PSs of ARC. We wonder, how the said OM dated 13.11.2003 and letter dated 25.1.2006 could not cover the SOs and PSs of ARC when even the 6th CPC has recognized their pay parity with their counterparts in CSS/CSSS/RandAW and other organizations. The denial of such parity is rather arbitrary action and discrimination. The 5th CPC granted the pay parity but the executives discriminated them. 6th CPC has granted them pay parity and respondents initially denied them but later on granted parity w.e.f. 01.01.2006.

11. For the reasons stated within and taking into account the totality of facts and circumstances of the case, we are of the considered views that the applicants are entitled to the benefits of OM dated 13.11.2003 and letter dated 25.1.2006. The respondents are, therefore, directed to grant them the benefits forthwith. All the applicants will be entitled to consequential benefits including arrears of pay and allowance. Those who have retired will be entitled to the revised reitral benefits. We direct the respondents to complete the exercise as ordained in the above directions as expeditiously as possible and preferably within three months from the date of receipt of a certified copy of this order.

12. Resultantly, the OA succeeds in terms of our above orders and directions. There shall be no order as to costs.