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Tuesday, 11 November 2014

1986 मामले में कैट की प्रधान पीठ का फ़ैसला

Central Administrative Tribunal
Principal Bench: New Delhi

OA No.2051/2012

Reserved on: 10.07.2014
Pronounced on:05.11.2014

Hon ble Mr. Justice Syed Rafat Alam, Chairman
Hon ble Dr. B.K. Sinha, Member (A)

1. Central Secretariat Official Language
Service Translators Association
Through is Vice President
Sh. Iftekhar Ahmed,
S/o Sh. M.E. Uddin,
R/o C-170, Minto Road Complex,
New Delhi.

2. Sh. Arun Vidyarthi,
S/o Sh. O.P. Vidyarthi,
R/o KG-1/185, Vikaspuri,
New Delhi 110 018.

3. Sh. Mohan Chandra Mishra
S/o Sh. G.D. Mishra
R/o 697, Laxmibai Nagar,
New Delhi 110 023. Applicants

(By Advocate: Sh. G.D. Gupta, Sr. Advocate with 
                      Sh. S.K. Gupta)

Versus
1. Union of India through
Secretary,
Ministry of Finance,
Department of Expenditure,
North Block, New Delhi.

2. Department of Official Language
(Cadre Controlling Authority),
Ministry of Home Affairs 
Through its Secretary,
NDCC-II Building, Fourth Floor,
Hall-B, Jai Singh Road,
New Delhi 110 001. Respondents

(By Advocate: Sh. B.K. Barera)
O R D E R

By Dr. B.K. Sinha, Member (A):


The instant OA, filed under Section 19 of the Administrative Tribunals Act, 1985 assails the order dated 29.09.2011 rejecting the claim of the applicants for upgradation of the pay scale i.e. Rs.5500-9000 for the Jr. Translators and Rs.6500-10500 for the Sr. Translators at par with the Assistants/Stenographers Group C w.e.f. 01.01.1986 at least on notional basis. However, these scales have already been granted to the applicants w.e.f. 01.01.1996 on notional basis and w.e.f. 11.02.2003 on actual basis vide OMs dated 19.02.2003 and 05.04.2004. 

2. The applicants have sought the following relief(s):-
(i) Quash and set aside the order dated 29.09.2011 (Annexure A-1) by which, the claim of the applicant s Association for grant of higher pay scale w.e.f. 01.01.1986 has been rejected;

(ii) Direct the respondents to grant higher pay scale of Rs.1640-2900/-, 2000-3500/- and 2200-4000/- to Jr. Translators, Sr. Translators and Asstt. Directors respectively of CSOLS maintaining parity of pay scales between the posts of Assistants/Stenographers grade C of CSS/ CSSS and Jr. Translator of CSOLS w.e.f. 01.01.1986 on actual basis with all benefits of arrears of pay and allowances etc. and similarly to revise the pay scales w.e.f. 01.01.2006 also;

(iii) Award the costs of litigation;

(iv) May also pass any further order(s), direction(s) as be deemed just and proper to meet the ends of justice.


3. This is a case which has done numerable runs before this Tribunal as well as before the Hon ble High Court of Delhi and the Hon ble Supreme Court.  We suspect that neither is it likely to be the last of this case that we have seen. 
4. The facts of the case, in brief, are that the applicants in the instant OA are the Central Secretariat Official Language Services Translators Association [hereinafter referred to as Association ] and who are suing through their Vice President one Iftekhar Ahmed and two other individual applicants.  The claim of the applicants arises from historical parity with the Assistants of CSS and Stenographers Grade C of CSSS.  There are three parallel Services in the Central Secretariat namely Central Secretariat Service (CSS), Central Secretariat Stenographers Service (CSSS) and Central Secretariat Official Language Service (CSOL).  The claim of the applicants is that the Jr. Translators have had a historical parity of pay scales with the Assistants of CSS and Stenographers Grade C of CSSS while the pay of the Sr. Translators have been on the higher side.  On the other hand, the qualifications and nature of duties of the Jr. Translators of CSOL have been superior to that of their counterparts in the CSSS and CSS. The Fourth Central Pay Commission [hereinafter referred to as CPC ] had recommended the replacement pay scales of Rs.1400-2600 for Jr. Translators (pre-revised Rs.425-700) and Rs.1640-2900 for the Sr. Translators (pre-revised Rs.550-800). For the sake of greater clarity, the recommendations of the Fourth CPC are being extracted as below:-
10.280.   It has been suggested by the members of the service that Jr. Translators (Rs.425-700) of the service should be given a higher scale of pay than Assistants of CSS as they are required to possess Master Degree whereas the Assistants possess Bachelor Degree. Even so, they have been given Group C status and pay scale of Rs.425-700 while Assistants of CSS are classified as Group B and are given the pay scale of Rs.425-800/-.  In view of the higher qualification required for entry grade of Jr. Translator, we recommend that this post be given the scale of Rs.1400-2600/- and for the post of Sr. Translator (Rs.550-800/-),   we recommend the pay scale of Rs.1640-2900/-.

Accordingly, the pay scale of Jr. Translators of CSOL was upgraded to Rs.1400-2600/- which was equal to the pay scales of Assistants of CSS and Stenographers Grade C of CSSS.  Assistants of CSS and Stenographers Grade C of CSSS did not accept the afore recommendations of the Fourth CPC and separately agitated for a higher pay scale to that of the Jr. Translators.  The matter was brought before this Tribunal vide OA No.1538/1987 on the ground of greater responsibilities, appointment by the President of India while the Group C employees were appointed by an officer of lesser rank; Assistants are selected by UPSC while the Group C employees are selected through SSC; Assistants have greater security as the UPSC has to be necessarily consulted before punishing them and they are liable to submit annual returns in respect of their immovable properties.  
5. The afore OA was disposed of vide order dated 23.05.1989 in which the Tribunal held that it was the pay which determined the classification/status of a post, not the other way round.  Pay itself was determined by the duties and responsibilities of the post.  The Bench further found that the Assistants had been traditionally accorded a higher classification as they constituted the Imperial Secretariat Service which was more or less equated with the members of the Provincial Service.  The Tribunal concluded that the Assistants had a prima facie case for consideration of their claim for higher scale as they were in the higher revised scale of pay of Rs.425-800/- and they were in the first rung of the important functionary in the Central Secretariat. The Tribunal was pleased to observe that prima facie, there is an anomaly which can be properly considered by the respondents as it requires detailed examination.
6. Subsequently, the pay scale of Assistants of CSS and Stenographers Grade C of CSSS was revised to Rs.1640-2900 vide DOP&T OM dated 31.07.1990 giving retrospective effect w.e.f. 01.01.1986. However, the pay scale of Jr. Translators was left unaltered consequent to the revision of the pay scale of Assistants and Stenographers Group C of CSS/CSSS vide OM dated 31.07.1990 which has led to the instant stream of litigation.  The claim of the applicants is that while the pay scales of Jr. Translators had been equated to that of the Assistants i.e. Rs.1400-2600 and the Sr. Translators had been kept on the higher side in respect of pay scale of Rs.1640-2900 by an expert body i.e. the Fourth CPC, the parity so maintained had been disturbed consequent to the issuance of the OM dated 31.07.1990 by the DOP&T. 
7. Following the initial rounds of petitioning, the applicants have brought the matter before this Tribunal by filing OA No.837/1991 which was decided vide order dated 26.10.1995 whereby this Tribunal rejected the claim of the applicants on the ground that the revision of pay scales was an exercise which was best left to expert bodies like Pay Commission as the Fifth CPC had already been constituted and was in sitting. Accordingly, the claim of the applicants was rejected leaving the choice open to them to approach the Fifth CPC.  Against this order, the applicants moved the SLP which was dismissed vide order dated 20.02.1996.  Thereupon the applicants Association filed one MA No.590/1996 in OA No. 837/1991 praying for restoration of the OA and disposal of the same on merit, which was also dismissed by the Tribunal and the previous order passed by the Tribunal in the OA had attained finality.  The applicants thereafter filed SLP against the order of the Tribunal passed in MA, which was again dismissed vide order dated 26.02.1997 with the following observations:-
We are not inclined to interfere with the impugned order.  It will be open to the petitioner to avail any other remedy that may be available to him in the law.  The SLP is accordingly dismissed.

8. The applicants Association filed OA No.1378/1997 before this Bench of the Tribunal seeking that the benefit of revision of pay vide OM dated 31.07.1990 whereby the scale of Rs.1640-2900 had been extended to the Assistants/Stenographers Group C of CSS/CSSS against pay scale of Rs.1400-2600, be made available to them.  The said OA was considered and dismissed by the Tribunal vide its order dated 20.11.2000 as being absolutely devoid of any force.  The applicants then filed WP(C) No.7231/2001 before the Hon ble High Court of Delhi which was disposed of vide order dated 14.05.2002 directing the respondents to treat the OA as representation of the applicants and to consider the same.  The matter was considered afresh in terms of the afore directives of the Hon ble High Court of Delhi regarding retrospective extension of higher scale of Rs.7500-12000, Rs.5500-10500 and Rs.5500-9000 to the Assistant Directors, Sr. Hindi Translators and Jr. Hindi Translators retrospectively.  Though it was not feasible to extend full retrospective effect, it was decided to grant higher pay scales prospectively w.e.f. 11.02.2003.  For the sake of greater clarity, the order is being reproduced hereunder:-
Sanction of the President is hereby conveyed for the following upgraded pay scales of the posts of Jr. Translator and Sr. Translator of Central Secretariat Official Language Service from 11.02.2003.

Sl. 
No.
Designation
Present Pay Scales
Upgraded Pay Scales
1
Junior Translator
Rs.5000-150-8000
Rs.5500-175-9000
2
Senior Translator
Rs.5500-175-9000
Rs.6500-200-10500

2. This office order is issued on the basis of approval given by the Ministry of Finance and Company Affairs (Department of Expenditure) vide their Office Memorandum No.70/11/2000-I.C. dated 13.2.2003.
3.    All the Ministries/Departments/Attached Offices are requested to take immediate action in this regard.

The matter was re-considered and it was decided to extend the benefits retrospectively on notional basis from 01.01.1996 vide Office Order dated 05.04.2004, which reads as under:-
Sub:-Replacement of the Pay Scales of Junior Translators, Senior Translators and Assistant Directors (OL) of Central Secretariat Official Language Service.
In continuation of this Department s order of even number dated 19.2.2003 and Office Order No.12/2/97-O.L. (s) dated 26.2.2003 on the subject mentioned above, sanction of the President is hereby conveyed for the following replacement of pay scales of the posts of Jr. Translator, Sr. Translator and Assistant Director (OL) of Central Secretariat Official Language Service from 1.1.1996 on notional basis with actual payment from 11.2.2003.
Sl. 
No.
Designation
Pay Scales
Replacement Pay Scales
1
Junior Translator
Rs.5000-150-8000
Rs.5500-175-9000
2
Senior Translator
Rs.5500-175-9000
Rs.6500-200-10500
3
Asstt. Director
Rs.6500-200-10500
Rs.7500-250-12000
2. The sanction of the President has been conveyed vide aforesaid office orders of this Department to give actual benefit of above replacement pay scales from 11.02.2003.
3.    This Office Order is issued on the basis of approval given by the Ministry of Finance (Department of Expenditure) vide their Office Memorandum No.70/11/2000-I.C. dated 31.3.2004.
4. All the Ministries/Departments/ Attached Offices are requested to take immediate action in this regard.

9. In the meantime, the Fifth CPC report had been received which recommended pay scales of Rs.5000-8000 (pre-revised Rs.1600-2600) for Jr. Hindi Translators, Rs.5500-9000 (pre-revised Rs.1640-2900) for Sr. Hindi Translators and Rs.6500-10500 (pre-revised Rs.2000-3500) for Assistant Directors of CSOL. Being aggrieved with what they had got, the applicants filed OA No.331/2009 before this Tribunal which was disposed of with the following directives:-
10.   In view of the observations made above, we dispose of this Original Application directing the respondents to consider the claim of the applicant association for upgradation of their pay scales at par Assistant/Stenographers of CSS/CSSS) w.e.f. 01.01.1986 at least on notional basis. Let the exercise, as ordained above, be completed within a period of three months from today.  There shall be no order as to the costs.  
10. Accordingly, the matter was considered and disposed of vide the impugned order dated 29.11.2011.  It appears from the order that while Department of Official Language (DOL) is the cadre controlling authority for CSOLS, the Department of Expenditure, Ministry of Finance is the authority concerned for upgradation of the pay scales of the Government Services. This order rejected the claim of the applicants vide their UO dated 23.08.2010 for the following reasons:-
a) The dispensation to allow a pay scale of Rs.1640-2900 to Assistants/ Stenographer Gr.C of CSS/CSSS w.e.f. 1.1.1986 was as a result of judgment of CAT and was made applicable to Assistants and Stenographers in the other organizations like MEA which are not participating in CSS/CSSS but where the posts are in comparable grades with same classifications and pay scales and the method of recruitment through open competitive examination is also the same.
b). There is no parity between the posts of CSOLS with Assistants/Stenographers Gr.C in respect of duties, responsibilities, functions, hierarchical levels, horizontal and vertical relatives, method of recruitment being different.  It was also indicated that translators are mainly involved in translation work, while work of Assistants involves examination of cases.
(c)     That the pay scale of Junior Translators were upgraded from Rs.5000-8000 to Rs.5500-9000 w.e.f. 1.1.1996 at par with similar posts in Central Translation Bureau and not on account of parity with the Assistants of CSS.

The matter was again represented by DOL to the Department of Expenditure on the grounds of importance of duties and responsibilities of Jr. Translators, no parity with similar posts in the Central Translation Bureau [hereinafter referred to as CTB ] as the post of Technical Assistant in CTB did not exist, and involvement of nominal financial implication.  There was also a meeting between the DOL and the Department of Expenditure at the Secretary level.  The Department of Expenditure informed vide their letter dated 01.07.2011 that the duties and responsibilities of Assistants of CSS were incomparable with that of the Assistants and reiterated the points covered in their UO dated 23.08.2010.  Drawing attention to para 17.125 of Fifth CPC relating to CTB, they informed that there was post of Technical Assistant in the pre-revised scale of pay of Rs.1400-2300 and nine such posts of Technical Assistants in the CTB had been abolished by 03.12.2008.  The post of Technical Assistant in the CTB was upgraded on the basis of the Fifth CPC and the post of Jr. Hindi Translator was allowed normal replacement scale.  The post of Jr. Hindi Translator in CSOLS was upgraded to Rs.5500-9000 in order to maintain parity with the Technical Assistants in CTB. A chart has also been provided in support of this contention, which is reproduced herein below:-

Jr. Translator of CSOLS
TA of CTB
1-3-1971
-
Rs.210-10-290-15-320-EB-15-425
1-1-1973
Rs.425-700/-
Rs.425-15-500-EB-15-560-20-700
1-1-1986
Rs.1400-2600
Rs.1400-2300
1-1-1996
Rs.5000-8000 (Up-graded to Rs.5500-9000 notionally w.e.f. 1.1.1996 and actually w.e.f. 11.2.2003 vide DOL dated 19.2.2003.
Rs.5500-9000 (upgraded based on specific recommendations of 5th CPC at para 70.127 of the report. 
1-1-2006
GP of Rs.4200/- in PB-2
GP of Rs.4200/- in PB-2

It was in view of this that Department of Expenditure did not agree to the proposal for upgradation of the pay scale of Jr. Translator w.e.f. 01.01.1996.  The applicants are here again against this order. 
11. The applicants while urging the grounds placed reliance upon the case of Purshottam Lal and Others versus Union of India and Another [1973(1) SCC 651] wherein the Hon ble Supreme Court has held that the Government after accepting the recommendations of the Pay Commission has to implement the same failing it commits breach of Articles 14 & 16 of the Constitution of India. Moreover, the respondents cannot take away the parity granted through the CCS (RP) Rules.  The applicants have further pleaded the ground of equal pay for equal work on the basis of the decision of the Hon ble Supreme Court in the matter of Nehru Yuva Kendra Sangathan versus Rajesh Mohan Shukla [2007 (9) SCC 230].  It remains undisputed that historically the pay of the Jr. Translators in CSOLS have either been at par with or above that of the Assistants/Stenographers Grade C of CSS/CSSS in terms of mode of recruitment, qualification, nature of duties, and responsibilities while the pay of the Sr. Translators and Assistant Directors of CSOLS has been higher. Hence, it is contended that the grant of notional scale w.e.f. 01.01.1996 instead of 01.01.1986 is arbitrary and violative of Articles 14 & 16 of the Constitution of India.  The cascading effect of the incorrect fixation is still being faced by the applicants.  
12. The learned counsel appearing on behalf of the applicants repeatedly emphasized on the higher entry qualification of the applicants. They were required to possess Master Degree with diploma/certificate in translation with two years experience.  The leaned counsel, referring to the OM dated 23.08.2010, submits that this Tribunal had only directed the respondents to consider the case of the Assistant/Stenographers Grade C of CSS/CSSS whereas the respondents proceeded to grant them a higher scale suo motu w.e.f. 10.01.1986. The applicants are similarly placed and, therefore, the Hon ble High Court of Delhi had directed the respondents to consider their claim.  However, qua the comparison made in the impugned order regarding parity with the Technical Assistants of the CTB, the applicants submit that it had never been their claim. It had been the recommendation of the Fourth CPC that in view of the higher qualification, the entry grade of Jr. Translator be given the pay scale of Rs.1400-2600.  This equilibrium was, however, disturbed by the OM dated 31.07.1990 vide which the pay scale of Assistants/Stenographers Grade C of CSS/CSSS was raised from Rs.1400-2600 to Rs.1640-2900 retrospectively w.e.f. 01.01.1986.  The learned counsel for the applicants submits that plea of parity with the Assistants/ Stenographers Grade C of CSS/CSSS has already been conceded vide Memos dated 19.02.2003 and 05.04.2004.  It is only a case of giving notional effect to this order w.e.f. 01.01.1986. This view has been supported repeatedly by the DOL and also by the Law Department.  
13. The respondents have filed their counter affidavit whereby they have resisted the claim of the applicants.  The facts being the same, the respondents submit that there is no parity between the posts of CSOLS with the Assistants/Stenographers Grade C of CSS/CSSS.  The posts belong to different cadres, the duties & responsibilities of the posts, functions performed, recruitment rules, hierarchical levels, horizontal and vertical relatives etc. are also different.  The DOP&T had extended the scale of Rs.1640-2900 to the Assistants/ Stenographers Grade C of CSS/CSSS w.e.f. 01.01.1986 consequent upon the decision of the Government based upon the judgment of this Tribunal.  This dispensation was made applicable to the Assistants and Stenographers in other organizations like MEA which were not participating in the CSS/CSSS. This position has been examined in OA Nos.837/1991 and 1378/1997 in detail. This position was again considered in OA No.331/2009 decided on 25.05.2010 but it was found unacceptable as it was disbursing the parity between the applicants and the Technical Assistants in the CTB consequent upon the recommendation of the Fifth CPC.  The post of Technical Assistant in CTB had been upgraded on the basis of specific recommendation of the Fifth CPC while the Jr. Hindi Translators had been allowed normal replacement scale.  The Government later upgraded the pay scale of Jr. Hindi Translators of CSLOS to Rs.5500-9000 in order to maintain parity with the Technical Assistants of CTB.  While the directives of the Hon ble Supreme Court dated 14.05.2003 had only been to consider the representation of the applicants on merit, the demand for parity with the Assistants of CSS has also been considered and conclusively rejected on merit.  The respondents have also submitted that upgraded pay scales were, however, allowed to Jr. Hindi Translators of CSOLS as the parity of these posts with similar posts in CTB (Technical Assistants) was found to have been disturbed subsequent to the implementation of the recommendations of the Fifth CPC.  The respondents have further submitted that parity of post is a matter to be decided by expert bodies like the Pay Commission and it cannot be decided by the Courts/ Tribunals.
14. The applicants have filed a rejoinder application wherein they submit that the recommendations of the Fourth CPC had been made when the Jr. Translators were having higher qualification.  There is no established law which prohibits comparison between equal status and similarly placed posts of different Services for the purpose of equity of pay scales.  It has been stated that while granting the pay scale w.e.f. 01.01.1986, the order of the DOP&T stated Assistants were also compared with equal status employees of other service/separate cadre with separate duties etc. i.e. Inspectors of Income Tax Department.  Besides, the Stenographers also belong to a separate service and perform separate functions but they are always given parity with Assistants.  Hence, double standard or separate criteria cannot be adopted for the employees of CSOLS who work in the same organization in which the Assistants and Stenographers w.er i.e. in Central Secretariat . The principal of equity of pay has been recognized by the Sixth CPC which has grouped pre-revised scale of Rs.5000-8000, Rs.5500-9000 and Rs.6500-10500 into a single grade pay of Rs.4200/- despite the fact that the posts in the aforesaid pre-revised pay scales belong to different services with different duties/mode of recruitment etc. Despite the equity of work, it is not necessary that all services perform identically the same work.  The applicants in the rejoinder application also denied the plea taken by the respondents that upgradation of pay scales of Jr. Hindi Translators, Sr. Hindi Translators and Assistant Directors w.e.f. 01.01.1986 would involve a huge financial burden.  
15. The learned counsel for the applicants strongly pleaded that the scales had already been granted to the applicants w.e.f. 01.01.1996 but it was only a question of retrospectivity i.e. w.e.f. 01.01.1986.
16. While considering this case, we were interested in knowing that what was the logic that weighed in the minds of the Government while issuing the OM dated 19.02.2003 and, hence, the respondents were asked to produce the file.  However, the learned counsel for the respondents Sh. B.K. Barera reported that the concerned files were not available. He was then asked to file an affidavit stating the correct position of the file, which has been filed in the form of an additional affidavit on 04.07.2014.
17. We have carefully gone through the pleadings of the parties as also the documents adduced on either side.  We have also patiently heard the arguments so advanced by the learned counsel for the parties on the basis of which, to our mind, the issue to be decided is indeed very limited.  
18. Admittedly vide Tribunal s order dated 23.05.1989 passed in OA No. 1538/1987 the respondents were directed to consider the claim of the applicants therein.  Further, admittedly vide order dated 31.07.1990, a higher scale was granted to them. As against that, the applicants have repeatedly filed OAs before this Tribunal and other higher courts.  In compliance of the judgment dated 14.05.2002 passed by the Hon ble High Court of Delhi in WP(C) No.7231/2001, the respondents considered the case of the applicant and decided to award pay scales notionally from 01.01.1996 while only it was given effect from 11.02.2003. 
19. Now, the claim that survives is that the applicants want the scale from 01.01.1986 instead of 01.01.1996 as recommended by the Fourth CPC notionally w.e.f. 01.01.1986.  The same has been rejected by the impugned order on the ground of disturbing the parity with the Technical Assistants of CTB.
20. The sole issue for consideration before us is that whether the applicants are to be extended the benefit of the pay scale as recommended by the Fourth CPC w.e.f. 01.01.1986.
21. The claim of the applicants vis-`-vis Assistants/Stenographers Grade C of CSS/CSSS for which the applicants have submitted a Chart at page 11-12 of the paper book, arises mainly from historical parity.  
22. In this regard, it needs hardly to state                     that   the   issue has done several rounds of the Courts. The claim of historical parity has been examined in OA No.1378/1997 decided on 20.11.2000 and has been totally debugged by this Tribunal.  The relevant portion is being extracted for greater clarity and easy reference:-
Recalling the past position, the respondents have pointed out that no parity ever existed between the Junior Translators and the Assistants/ Stenographers Grade C right upto 31.12.1985 on which date the Assistants and Stenographers Group C enjoyed the pay scale of Rs.425-800; whereas the Junior Hindi Translators worked in the pay scale of Rs.425-700 and from 1.1.1986, the Junior Translators were placed in the scale of Rs.1400-2600; whereas w.e.f. the same date the Assistants/Stenographers Grade C were placed, as a result of Government s intervention, in the scale of Rs.1640-2900.

Moreover, the same order further mentions that the Bench came across a representation filed by the applicants dated 30.12.1983 before the Fourth CPC in which they had requested for the scale of Rs.1400-2450 for Junior Translators and Rs.1600-2600 for Senior Translators.  The Fourth CPC, as it would turn out, awarded to them a still higher scale of Rs.1400-2600 and suggested higher scale of Rs.1640-2900 for Hindi Translators. Later on, coming to know that the Government was considering the representation of the Assistants/Stenographers Grade C of CSS/CSSS for a possible hike in their pay scales to Rs.1600-2940 (up from Rs.1400-2600 recommended by the 4th CPC), the applicants petitioned before the Finance Minister on 26.02.1990 asking for a similar treatment to be given to them keeping in view the recommendation made by the Fourth CPC in their favour.  This was followed by yet another petition to the Finance Minister on 07.06.1990 in which it had been pointed out that although the Government had, in the meanwhile, decided to grant the higher scale of pay of Rs.1649-2900 to the Assistants and Stenographers Grade C , no action had been taken on the petition filed by them.  This was followed by yet one more petition dated 14/21.09.1990 to the Finance Minister.  This much of persuasion led to an assurance from the respondent no.2 saying that the applicants petition was under consideration. The letter containing the assurance is dated 12.10.1990.  The luck, however, did not favour the applicants and the respondent no.2 ultimately decided the matter against them vide letter dated 21.12.1990.  This letter clearly brought out that the Government had rectified through proper procedure the anomaly that had come into existence in the pay scale of Assistants and Stenographers Grade C by revising their pay scale.  Equally the same letter pointed out that the Government found no anomaly in the pay scale of Jr. Translators. The same order  dated 20.11.2000 passed in OA No.1378/1997 further goes to hold that the Tribunal s order dated 26.10.1995 passed in OA No.837/1991 had become final in view of the dismissal of the SLP of the applicants before the Hon ble Supreme Court on 20.02.1996.  Despite this, the applicants once again contrived to file another SLP in which it was held as under:-
We are not inclined to interfere with the impugned order.  It will be open to the petitioner to avail any remedy that may be available to him in the law.  The SLP is accordingly dismissed.

The applicant thereafter filed OA No. 1378/1997 which was dismissed. Thus, in sum and substance it transpires that the claim of historical parity is non-existent and it has only been assumed with the recommendations of the 4th CPC. 
23. Now a crucial issue is that what was the justification in issuance of the OM dated 31.07.1990 which is most offensive to the applicants. This issue has been examined by the Full Bench of this Tribunal in the matter of M.V.R. Rao and Others etc. etc. versus Union of India [2002(2) ATJ 6].  The issue with which the Full Bench was confronted was that whether Stenographers and Assistants of subordinate and attached offices of Government of India are entitled to the pay scale of Rs.1640-2900 applicable to Stenographers and Assistants working in Central Secretariat Service. It is basically a justification for the OM dated 31.07.1990.  The relevant portion of the judgment of Full Bench is being extracted hereunder:-
26.    It is important to note here that there was no change in the Award of Board of Arbitration.  What has actually happened is that Stenographers Grade C of CSSS, Assistants of CSS and certain other categories of Stenographers Grade C /Assistants have been granted the higher scale by OM dated 31.07.1990.  It is also relevant to note that upto 31.12.1985 Stenographers Grade C and Assistants in the Secretariat and certain other categories of Stenographers Grade C /Assistants were in the higher scale of Rs.425-800 as compared to their counterparts in the non-Secretariat offices who were in the lower scale of Rs.425-700.  Pursuant to the Fourth Pay Commission s recommendations they were placed in the higher replacement scale of Rs.1400-2600 while the latter were placed in the lower replacement scale of Rs.1400-2300.  It is important to note that pursuant to the Award of Board of Arbitration, the pay scale of Stenographers Grade II in subordinate and attached offices of government of India was raised vide OM dated 4.5.1990 to Rs.1400-2600 w.e.f. 01.01.1986, but within less than two months, the pay scale of Stenographers Grade C and Assistants whose pay scale was Rs.1400-2600 was raised to Rs.1640-2900 vide OM dated 31.07.1990 w.e.f. 01.01.1986 on the basis of CAT, PB order dated 23.05.1989 in OA No.1538/1987.  Thus it would be fair to say that the parity in pay scales was for an extremely brief period if at all.  Hence the aforesaid rulings, all of which relate to the parity in pay scales which remained for considerable lengths of time, are distinguishable on facts.

Further, going into the issue of equal pay for equal work, the Full Bench held as under:-
29.   If a claim for equal pay for equal work is to succeed the burden of proof rests on the applicants to furnish materials regarding qualifications, mode of recruitment, degree of skill, experience involved in the performance of the job etc. in the background of the Hon ble Supreme Court s ruling cited above.  No such factual materials have been placed before us in these OAs, and there are only certain bald averments to the effect that duties and responsibilities of applicants are identical with those of Stenographers Grade C in Secretariat in respect of whom they are claiming parity.  Clearly such averments unsupported by factual material is not sufficient to grant the claim for pay parity in the light of the Hon ble Supreme Court s ruling in Dey s case (supra).  

Further, we take note of the arguments for parity advanced by the applicants drawing comparison between mode of recruitment, nature of duties & responsibilities in support of their claim. This issue has been examined by this Tribunal in OA No.837/1991 and 1378/1987 wherein both the Benches have held clearly that the work of fixation of pay scales and drawing of parity are best left to                the expert bodies like the Pay Commission.                     This principle   has been further supported                        in Food Corporation of India & Others versus Ashis Kumar Ganguly [2009 (7) SCC 734] wherein the Hon ble Supreme Court has held that issues pertaining to pay scales etc. are best left to the expert bodies like the Pay Commission and the Courts are only empowered to interfere when they find the decision grossly violative of the rules and law and prejudicial to the sections of the employees and taken in ignorance of material and relevant facts.  Likewise, in the case of State of West Bengal versus Subhas Kumar Chatterjee & Others [2010 (11) SCC 694], the Hon ble Supreme Court has clearly held that 
26. Yet another question that arises for our consideration is whether a writ of mandamus lies compelling the State to act contrary to law? The State Government having accepted the recommendations of the successive Pay Commissions gave effect to those recommendations by framing statutory rules being ROPA Rules and scales of the employees have been accordingly fixed. The respondents did not challenge the vires of the said Rules under which they were entitled to only a particular scale of pay. The State Government is under obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules nor the Court can direct the Government to act contrary to rules. No Mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No court can issue Mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate law. Such directions may result in destruction of rule of law. In the instant case, the impugned order of the High Court virtually compelled the State to give pay scales contrary to statutory rules under which pay scales of the employees are fixed. The decision of the Chief Engineer being contrary to ROPA Rules, 1998, cannot be enforced even if such a decision was taken under the directions of the Administrative Tribunal. The orders of the Tribunal as well as of the High Court suffer from incurable infirmities and are liable to be set aside.


This decision has been further supported and reiterated in Kshetriya Kisan Gramin Bank versus D. B. Sharma and Others  [2001 (1) SCC 353]; Manmatha Nath Ghosh and Others versus Baidyanath Mukherjee and Others  [2005 (13) SCC 630]; Federation of All India Customs & Central Excise Stenographers (Recognized) & Others versus Union of India & Others [1988(3) SCC 91] and Supreme Court Employees Welfare Association & Others versus Union of India & Others [1989 (4) SCC 187], to mention a few.

24. These judgments of the Hon ble Supreme court sufficiently clarify that where the Government has repeatedly considered the plea and have found that there is no comparison to be made between the applicants that being the Jr. Translators of CSOLS and Assistants and Stenographers Grade C of CSS/CSSS, this Tribunal should be extremely careful going into the merits of the comparison unless it were found grossly unjust, mala fide and patently wrong with this stand. The comparison is always between the likes and not being the likes and un-likes .  Therefore, we consider it save to abide by the ratio given by the Hon ble Supreme Court in the aforementioned judgments. 
25. We are also additionally swayed by the fact that this issue has been adjudicated and re-adjudicated at the different fora but one must admire the grit of the applicants.  It also stands to reason that the different courts have already considered and re-considered the issue and have said entire no to the applicants.  Thus, the orders dated 11.02.2003 and 045.04.2004 appear to be a matter of special dispensation and is not entirely based upon the principles of equity. 
26. Finally, we take up the issue of comparison between the applicants and the Technical Assistants of CTB.  We have already referred to the arguments advanced on behalf of the applicants and the respondents.  In this regard, it is significant to note that the nature of duties of the Technical Assistants of CTB was more akin to the Jr. Translators as compared to that of the Assistants/Stenographers Grade C of CSS/CSSS.  There is logic behind the arguments of the respondents that while the Translators are merely involved in translation work, the Assistants are involved in the work of examination of cases.  Thus, the two are incomparable to Jr. Translators and the Technical Assistants of CTB are discharging the same nature of duties and are very similarly placed.  Both these groups have been placed in the scale of Rs.425-700 from 1.1.1973 and Rs.1400-2600 for the Junior Translators w.e.f. 1.1.1986 and Assistants of CTB was in the scale of Rs.1400-2300 w.e.f. 1.1.1996, Jr. Translators have been granted the scale of pay of Rs.5000-8000 while the CTB Assistants were granted the scale of Rs.5500-9000.  The scale of the Jr. Trnaslators was also subsequently raised notionally w.e.f. 1.1.1996 at Rs.5500-9000 vide letter dated 19.02.2003.  With effect from 1.1.2006 on actual basis.  Both were placed in PB-2 with a grade pay of Rs.4200/- However, the post of Technical Assistants was abolished in the year 2006-2008.
27. The arguments of the respondents in the impugned memorandum appears to be justified that the post of Technical Assistant were in existence during the period under consideration and extending the benefit prospectively even if notionally from 01.01.1986 would stand to disturb the equilibrium vis-`-vis Technical Assistants in CTB.  Though subsequently both were placed in the same grade pay of Rs.4200/-, the post has been abolished. Therefore, the question is not relevant in the present case.  However, it was relevant during the period of the 4th CPC.
28. We have carefully considered the issue and we lead to the inescapable conclusion that the prayer of the applicants has repeatedly that the applicants have knocked the doors of the different courts and have been even the relief which they have secured vide OM dated 19.02.2003 is the result of a special dispensation and does not appear to be matter of entitlement.  The comparison is more with the erstwhile Technical Assistants in the CTB and not with the Assistants/Stenographers Grade C of CSS/CSSS.  Moreover, the seventh CPC is already in sitting.  The applicants have the option to take up the matter with the 7th CPC.  Hence, we find no merit in the application and the same is dismissed without any order as to costs.


(Dr. B.K.Sinha) (Syed Rafat Alam)       
  Member (A) Chairman

/naresh/

9 comments:

  1. Please find another judgement given by the Delhi High Court vide No. W.P.(C) 4606/2013, C.M. NO. 10601/2014 on 14-10-2014 in favour of Ordance factory Asst for pay parity with Asst working in the CSS. So we have still a way, its not an end.

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  2. 1986 का मामला खारिज होना अफसोसजनक है। यह उन सभी के लिए निराशाजनक है, जो इस मुद्दे पर पिछले अनेक वर्षों से संघर्षरत थे। वैसे मेरे समझ में, न्यायालयीन फैसलों को बहुत विद्वान कानूनविद और विधिवेत्ता ही समझ सकते है। कानूनी तर्क इतने पेचीदगी भरे होते है कि आवश्यकतानुसार एक ही तर्क कि पक्ष में भी व्याख्या की जा सकती है और विपक्ष में भी।
    चूंकि यह फैसला खारिज हो चुका है, इसलिए आपको नए सिरे से विचार करने की आवश्यकता है। वास्तव में 1986 को अब करीब-करीब 30 वर्ष हो रहे है, यह भी एक कारण है, मामले के खारिज होने का। बेहतर होगा की अब आप 4600 के लिए प्रयास करें।
    अक्सर न्यायालयों द्वारा वेतन आयोग के गठन का हवाला देकर वेतन संबंधी मामलों को खारिज कर दिया जाता है। जबकि सरकार द्वारा तय terms & Conditions में इसका कोई उल्लेख नहीं होता है। वेतन आयोग यदि कोई विसंगति को दूर करता भी है तो वह वेतन आयोग की अनुशंसा लागू होने की तारीख से ही प्रभावी होती है। उसका पूर्व असमानता/विसंगति पर कोई प्रभाव नहीं होता है।

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  3. कृपया बताने का कष्ट करें कि कौन से भर्ती नियम अंतिम चरण में हैं. भर्ती नियम तो काफी पहले फ़ाइनल हो गए थे. क्या उनमे कोई परिवर्तन किया जा रहा है. कृपया शीघ्र सूचित करने का कष्ट करें.

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  4. क्या अनुवादकों का gradepay 4600 करने का प्रस्ताव 7th paycommission के समक्ष रखा गया है. यदि नहीं तो इस ओर ध्यान देना आवश्यक है.क्योंकि JCM में कही इस मुद्दे को नहीं रखा जा रहा है.इस मुद्दे पर तुरन्त कार्यवाही अपेक्षित है.कृपया ध्यान दें.

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  5. क्या अनुवादकों का gradepay 4600 करने का प्रस्ताव 7th paycommission के समक्ष रखा गया है. यदि नहीं तो इस ओर ध्यान देना आवश्यक है.क्योंकि JCM में कही इस मुद्दे को नहीं रखा जा रहा है.इस मुद्दे पर तुरन्त कार्यवाही अपेक्षित है.कृपया ध्यान दें.

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  6. माधवी गर्गजी,एसोसिएशन ने वेतन आयोग के समक्ष सभी तर्कों के साथ अपनी मांगें रखी हैं जिनमें उच्चतर ग्रेड-पे और पदनाम को बदले जाने की मांगें शामिल है।

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  7. I AM PMK PRASAD, WORKING IN THE COAL MINES PROVIDENT FUND DEPARTMENT WHICH IS SUBORDINATE CENTRAL GOVT AUTONOMOUS OFFICE. CAN I JOIN AS A MEMBER IN THIS BLOG ? I AM WORKING AS JHT PL REPLY

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    Replies
    1. आपका स्वागत है बंधु।

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  8. क्‍या मुझे हिंदी अनुवादकों व हिंदी अधिकारियों/सहायक निदेशक-राजभाष्‍ाा के वेतनमान में बृद्धि संबंधी वित्‍त मंत्रालय के फरवरी 2003 के आदेश/का.ज्ञा. की प्रति मिल सकती है?

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अपनी पहचान सार्वजनिक कर की गई आलोचना का स्वागत है। किंतु, स्वयं छद्म रहकर दूसरों की ज़िम्मेदारी तय करने वालों की और विषयेतर टिप्पणियां स्वीकार नहीं की जाएंगी।