Indian
Council of Agricultural Research Vs. A.N. Lahiri [1997] INSC 429 (11 April
1997)
S.B.
MAJUMDAR, M. JAGANNADHA RAO.
ACT:
HEADNOTE:
S.B.Majmudar,
J.
Indian
Council of Agricultural Research (`ICAR' for short) though its Director General
has moved this appeal on special leave against the judgment and order rendered
by Central Administrative Tribunal, Jodhpur Bench, Jodhpur in Original
Application filed by the respondent herein. In order to appreciate the
grievance of the appellant a few introductory facts are required to be noted at
the outset.
The
respondent was initially selected by the Union Public Service Commission on the
post of plant phvsionlogist in the year 1960 and accordingly joined the
Agricultural Department of Government of India on 1st October
1960 at Central Arid
Zone Research Institute.Jodhpur, Rajasthan. On 6th March 1967 the respondent opted for the service of ICAR and he was
absorbed in its service and was given substantive appointment with effect from 1st December 1966. On 9th April 1975 the respondent was selected for the post of Head of
Division of Soil Water Relationship which was subsequently reorganized and
re-designated as Division of Arable copying System. Respondent was given a time
scale of Rs.1800-2000/-.
In the
year 1975 ICAR restructured its services and constituted a service known as
Agricultural Research Service (`ARS' FOR SHORT) This service was constituted
with effect from 1st
October 1975 and the
rules regulating the constitution of the service were also framed by the appellant.
It is the case of the ICAR that pursuant to the formation of ARS the scientists
working under it were required to furnish bio-data for induction in ARS and
that the respondent didn't furnish his bio-data till 30th September 1980, the
last date for submitting the bio-data, in response to guidelines of ICAR as a
result of which he was not considered for induction onto ARS. That on 8th December 1976 respondent submitted a
representation to the Director General, ICAR to grant him next higher grade namely,
Rs.1800-2250/-. According to the ICAR the induction into the ARS was a one time
operation and was to be done strictly in accordance with the prescribed
procedure laid down for this purpose. Under the Rules the prescribed time limit
was 30th September 1980. In the ARS induction of scientists
was to be effected in the appropriate time scales available in ARS. That for
the scientists holding posts in the scales for Rs.1500-1800/- Rs.1500-2000/-
Rs.1500-2000/- and RS.1800-2000/- only one grade of S-3 of Rs.1500 -2000/- was
available for induction. According to the appellant the respondent was not
willing to be absorbed in S-3 grade but wanted induction in S-4 grade in the
scale of Rs. 1800- 2250/-. Result was that respondent remained outside the
purview of ARS. In the meantime an order came to be passed by President of ICAR
on 16th July 1985 continuing the respondent on a
permanent basis in ICAR excluding his post from ARS. The said order was not
challenged by the respondent at any time thereafter. It appears that
subsequently when UGC pay scales were introduced for ARS scientists holding
different grades from S to S-3, the respondent who was all throughout
continuing as Head of the Department had Second thought and submitted his
option on 20th August 1988 who was all through out for induction in ARS. The
ICAR by an order dated 9th
March 1989 adopted UGC
pay Scales the ARS, scientists with effect from 1.1.86 as per the decision of
the Government of India. As the respondent was outside the ARS he did not get
this benefit of UGC pay scales. The respondent's contention was that the should
be deemed to be absorbed in ARS even on the then existing S-3 pay scale which
got revised upwards as per UGC pay scales to Rs. 4500-7300/-. As this was not
made avialable by the ICAR to him he moved the Tribunal by an application. The
Said application, as noted earlier, came to be granted by the Tribunal by the
impugned order which is challenged by the appellant in this appeal.
Learned
counsel appearing for the appellant vehemently submitted that respondent
according to his calculations and in his own wisdom thought it fit to remain
outside ARS when it was introduced in 1975 as he would have been inducted only
as scientist in the maximum scale of S-3 which was RS.1500-2000/- in those
days. Respondent was already in the pay scale of Rs.1800-2000/- in ICAR itself
and was also enjoying the Position of Head of the Department. However if he
would have joined ARS as per the Scheme applicable to ARS he would have been
required to give up headship by rotation as prescribed by rules which he was
not willing to do. He also insisted that he should be inducted in ARS in the
time scale available to S-4 scientists which was not permissible as per the
scheme. Accordingly he remained outside ARS and that is the reason why he did
not challenge the order dated 16th July 1985.
Consequently when pay scales of S-3 scientists in ARS were enhanced by adopting
UGC pay scales with effect from 1.1.86 respondent obviously could not get the
benefit thereof being outside ARS. That he could not get best of both the
words, namely, to get permanent headship by remaining outside ARS and still
claim the pay scale available to scientists in ARS. Therefore, his claim for
getting UGC pay scales of Rs.4500-7300/- was obviously untenable. That when he
remained outside the ARS he ultimately got escalation of pay scales when made
available to Central Government employees as per the IVth Central Pay
Commission Report, namely, Rs.4100-5300/- and when he retired from service in 1996
he was rightly allowed to retire in the said time scale. It was next contended
that the Tribunal was in error in taking the view that on the principle of
Equal pay for Equal Work the respondent was entitled to get the time scale of Rs.
4500-7300/- available to ARS scientists as the respondent was not in that
category.
Learned
counsel for the respondent on the other hand submitted that when the ICAR
service was restructured in 1975 all the ICAR employees automatically got
absorbed. That there was no provision for an ICAR employee to opt out for
absorption. Absorption was automatic and that the respondent was never informed
at any time thereafter that his absorption was granted so as to enable the
respondent to exercise his option of not being absorbed, within six months of
the decision of the Board to absorb him. That even otherwise under the scheme
the respondent could opt for being absorbed even later on in ARS and that is
how respondent had opted for ARS in 1988. That even though he might have asked
for a higher pay scale of S-4 scientists as per ARS scheme he would be deemed
to be absorbed at least in pay scale of S-3 scientists and once that happened
the UGC pay scales made applicable to escalated pay scale of S-3 scientists
would automatically become available to the respondent. He, next submitted that
the order of 1985 was clearly unauthorised and incompetent. In any case on the
principle of Equal pay for Equal Work the respondent was rightly held entitled
to the pay scale of Rs.4500-7300.
Learned
counsel for the respondent further submitted that respondent has already
retired in 1996 and on the peculiar facts of this case, therefore, this court
may not interfere under Article 196 of the Constitution of India.
We
have given our anxious consideration to these rival contentions. So far as the
question of respondent's absorption in ARS is concerned, on a close look of the
scheme of restructuring the erstwhile service of ICAR it appears to us that
absorption of the erstwhile ICAR candidates was automatic. All the ICAR's
candidates had to be considered for initial constitution of the Cadres in ARS.
Our attention was invited to the contents of the New Personnel policy adopted
by ICAR. Referring to the New personnel Policy it was stated in the scheme that
the ICAR had restructured its personnel policies towards all the categories of
the staff - scientific, technical, administrative and supporting. For the
scientific staff, an Agricultural Research Service was started on 2nd October 1975. The composition of services
included all the posts the incumbents of which were engaged in agricultural
research and education (including extension education). All these posts had
been grouped under various disciplines the details of which had been given in
Appendix I to the Scheme. When we turn to Appendix I we find listed various
disciplines for the purpose of recruitment to the ARS. The grades of service
were to consist of Scientist (s), Scientist 1 (S-1), Scientist 2 (S-2) and
Scientist 3 (S-3). The highest time scale was available to the cadre of S-3,
i.e., Rs.1500-2000.
About
the initial constitution of ARS it was mentioned in the scheme that the service
had been initially constituted with effect from 1st October 1975 out of the regular employees of the ICAR who were found of
eligible and suitable by Agricultural Scientists Recruitment Board.
Dealing
with initial constitution of the Service, namely, ARS it was provided that the
existing employees of the ICAR holding scientific and technical posts on the
date of the constitution of the service, i.e., 1st October 1975 on regular
basis and satisfying the other conditions of eligibility were to be treated as
eligible for being inducted in the service. Screening for induction was to be
done by the Board. Persons who were not absorbed at the time of initial
constitution of the service could be considered again for appointment to the
service at a subsequent stage or stages. Any person who did not desire to be
absorbed in the service could continue to hold the position already held by him
provided that he informed the ICAR accordingly within a period of six months
from the date of his selection for induction into the service. Dealing with
Heads of Divisions in the Institutes it was provided That the posts of Heads of
Divisions in the Institutes could be filled by rotation from amongst the
professors in the Divisions or other senior scientists in the Scales of pay of
Rs.1500-2000 or Rs.1800- 2000. The suitable guidelines were being evolved for
the purpose. Appendix II to the scheme dealt with service rules for ARS.
`Council's candidates' were defined by Rule 2(i) to mean, `persons specified in
Schedule I on the date of constitution of the Service'. When we turn to
schedule I framed in the light of Rule 2 we find Council's candidates to be considered
for initial constitution of this cadre being those who are employed on the date
of sanction of the service on regular basis amongst others.
In the
light of the aforesaid salient features of the restructured scheme ARS, it,
therefore, becomes clear that all existing `council's candidates' working on
regular basis as scientists became eligible for automatic absorption and if on
screening absorption was refused on any ground such unabsorbed persons also
could be considered for appointment to the service at a subsequent stage.
Therefore, there was no question of the respondent initially opting for the
service. The only option which he had was to opt out of the service once he was
originally absorbed. learned counsel for the respondent was right when he
contended that there was nothing on the record to show that at any time the
appellant had informed the respondent that he was not found eligible for
absorption. Accordingly we may proceed on the basis that initially when ARS Was
introduced on 2nd October 1975 the respondent became entitled to be absorbed as
S-3 scientist as there was no higher scale of S-4 grade of scientists in the
time scale of Rs.1800-2250 was available for research management positions only
and those who were eligible for S-4 grade onwards were only six categories of
Scientists, namely, (i) Director-General, (ii) Dy.
Directors-General,(iii)
Directors of the Institutes, (iv) Project Directors, (v) Joint Directors, and
(vi) Asstt. Directors General. Respondent admittedly did not fall in any of
these categories. Therefore, he could not have been inducted in the time scale
of S-4 scientists. In view of these circumstances despite the automatic
absorption of respondent in S-3 grade from 1st October 1975 it appears that respondent was not
willing to accept the said absorption in S-3 grade and insisted for induction
and absorption in S-4 grade. That is clear from his own letter dated 7th February 1979 which he addressed to the Director
General of the ICAR. The following averments made by respondent in the
aforesaid communication speak for themselves. They read as under :
"However,
we are also deeply concerned about the future developments of an unresolved
issue which was receiving your kind and sympathetic consideration. This issue
relates to the revision of the pay scale of Head of Divisions, presently in the
grade of Rs.1800- 2000 to Rs.1800-100-2000-125/2- 2250.
Although
I have not heard anything specific regarding the development of this case, i
understand that this proposal may be acceptable provided it becomes operative
from October 1, 1975. In this connection i have to
submit that I am agreeable to accept the revision of the pay scale from this
date under my existing terms of appointment." The aforesaid communication
by respondent leaves no room for doubt that he was not willing to be absorbed
in the pay scale of Rs.1800-2000 meaning thereby S-3 grade in ARS and he wanted
induction in S-4 pay scale of Rs.1800-2250. As we have seen above under the
scheme such a higher pay scale was not available to the respondent for being
inducted in ARS. Consequently even accepting the contention of learned counsel
for the respondent that he stood automatically absorbed on 2nd October 1975 as scientist S-3 in ARS, by his own
volition he exercised his option not to be absorbed as scientist of S-3 grade
of ARS. Learned counsel for the respondent submitted that he only wanted a
higher pay scale but it would not amount to his opting out of ARS Once he was
automatically absorbed therein. It is not possible to agree with this
contention of the learned counsel for the respondent. Respondent was already
Head of the Department and he made it clear in so many terms in the said
communication dated 7th February 1979 that he was agreeable to the revision of
pay scale as suggested by him meaning thereby short of that he was not willing
to accept lower pay scale of Rs.1500-2000. The reason was obvious. He was also
Head of the Department. Thus there was no economic gain to him by accepting a
lower time scale of Rs.1500-2000 by getting inducted as S-3 grade scientist in
ARS which would, apart from not bringing him any monetary gain, result in his
losing the post of Head of the Department as by rotation he would have been
required to vacate the same if he had joined ARS as S-3 grade scientist.
Therefore, his stand was justified in not being absorbed in ARS in those days.
Not only that because of his insistence the president of ICAR order dated 16th
July 1985 treated respondent to be out of ARS and made him permanent as Head of
the Department on an independent pay scale in ICAR. It is not possible to agree
with the contention of learned counsel for the respondent that the said order
was incompetent. Respondent had not thought it fit to challenge the said order
at any time on that ground. Not only that but he accepted the benefit flowing
out of the said order by remaining outside ARS and enjoying the headship of the
Department on a permanent basis till he retired in 1996. Consequently it must
be held that the respondent on his own volition had remained out of ARS. Consequently
the subsequent escalation of the pay scales of ARS scientists under UGC pay
scales with effect from 1.1.86 could not have been automatically earned by the
respondent.
On the
aforesaid conclusion of ours the respondent would ex facie appear to lose his
battle. However there is one silver lining to the dark cloud which otherwise
engulfs the respondent's case an that silver lining is highlighted by the
Tribunal and which in our view stands well sustained.
We may
now advert to the said aspect of the matter.
The
Tribunal has held that the work which the respondent was doing as a scientist
was of the same type as was being carried out by scientists who had been
inducted in the ARS. Not only that his juniors who were actually working under
him, as he was the Head of the Department, and who had joined ARS got the
benefit of higher pay scale of Rs.4500- 7300. The nature of work which they
were doing was of the same type as was done by their Head of the Department.
Qualification
wise there was no distinction between the two sets of employees. Their initial
source of recruitment was also the same. Their initial source of recruitment
was also the same. Their employer was also the same, namely, ICAR. It is the
same employer who had two sets of employees, one governed by ARS system of
service and the others who were outside ARS but still very much doing the same
type of work as scientists and belonging to the same institution, namely,
ICAAR, of course forming a separate wing of employees. Under these
circumstances, therefore, the doctrine of Equal pay for Equal work got squarely
attracted . The conclusion to which the Tribunal reached on this aspect,
therefore, cannot be faulted from any angle. Not only that but in the case of
one Dr. Gupta who also was a scientist working under the ICAR and who was
outside ARS was directed to be given same pay scale of Rs.4500-7300 as was made
available to ARS scientists by decisions of this Court in the case of Dr. Y.P.Gupta
V. Union of India & Ors. (1984) 2SCC 141. Under these circumstances,
therefore, it could not be said that the Tribunal had committed any error in
directing the appellant to make the same pay scale of Rs. 4500-7300 available
to the respondent as was made available to a similarly situated employee like
Dr. Gupta who was almost equally circumscribed as the respondent and although
being out of ARS was still held entitled as per this court to the same
escalated time scale of Rs4500--7300 which was made available to ARS
scientists. it is also to be kept in view that the respondent has already
retired from service and his is almost an isolated case. under these
circumstances, without treating this case as a precedent we deem it fit not to
interfere with the order of the Tribunal under Article 136 of the constitution
of India.
For
all these reasons, therefore, this appeal fails and stands dismissed. Interim
stay granted earlier by an order of this Court dated 30th August 1994 shall stand vacated.
The
appellant shall work out all the monetary benefits available to the respondent
pursuant to the order of the Tribunal as confirmed by us and make them
available to the respondent preferably within a period of four months from the
date of receipt of a copy of this order at its end. In the facts and
circumstances of the case there will be no order as to costs.
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