Union of India Vs. Arun Jyoti Kundu & Ors [2007] Insc 874 (27 August 2007)
H.K.
Sema & P.K. Balasubramanyan P.K. Balasubramanyan, J.
Intervention
allowed. Heard learned counsel on all sides.
1.
These appeals by the Union of India challenge the decision of the High Court of
Calcutta dismissing the writ petitions filed by it challenging the decision of
the Central Administrative Tribunal, Calcutta Bench, in applications filed by
employees of Railways in typist cadre. The claim of the employees was for the issue
of a direction to the appellant to sanction the same scales of pay to them as
are applicable to senior clerks, head clerks and Office Superintendents Grade
II with effect from 1.1.1996 and for directing payment of the arrears on that
basis. The Central Administrative Tribunal had upheld that claim. That was
challenged in the High Court, but the High Court repulsed the challenge.
2.
Claim before the Tribunal was made on the basis that the scales of pay of the
respondents herein, working as typists in the Eastern Railways is at par with
that of Lower Division Clerks. The Fifth Pay Commission had recommended that
typists should be treated at par with clerks and hence the typists have a
legitimate right to claim pay at scales enjoyed by Senior Clerks, Head Clerks
and Overseers Grade II in respect of the posts of Senior Typists, Head Typists
and daily typists respectively. Instead of implementing the recommendations of
the Fifth Pay Commission, the appellants have fixed the pay of the respondents
at lower scale. When typists were at par with the ministerial staff in the
matter of promotion, there was no justification for not treating Senior Typist,
Head Typist and the Chief Typist at par with Senior Clerk, Head Clerk and
Overseer Grade II. The claim was opposed by the Union of India by pointing out
that the recommendations of the Fifth Pay Commission regarding pay had been
duly implemented to the extent accepted but that the cadre of typists had not
been merged in the cadre of clerks. When a grievance was put forward, the
question was examined by the Anomaly Committee and in respect of English
Typists and Hindi Language Typists, relief was granted with effect from
31.1.2000 that it was not within the purview of the Central Administrative
Tribunal to re-fix the pay scales or to issue directions to merge the cadre as
sought for by the respondents and that the applications were liable to be
dismissed.
3. The
Central Administrative Tribunal brushed aside the objections of the Union of
India regarding its jurisdiction, its authority to issue a direction to merge
the cadres and the propriety in its undertaking the fixation of pay scales in
the light of the decisions of this Court and proceeded to grant relief to the
respondents by directing that the English language and Hindi language typists
be given the same pay scales as applicable to Senior Clerks, Head Clerks and
Office Superintendents with effect from 1.1.1996 and that the arrears be paid
on that basis within the time fixed.
The
Tribunal in O.A. 12 of 1999 also directed the appellants to give the benefit of
the same scales to all typists as are applicable to Senior Clerks, Head Clerks,
Office Superintendents Grade II as contained in the order dated 16.10.1997 with
effect from 1.1.1996. Feeling aggrieved by these directions, the Union of India
filed the writ petitions before the Calcutta High Court reiterating its
contentions.
The
Division Bench overruled the contentions of the Union of India and dismissed
the writ petitions. The Union of India has thereupon come up with these appeals
by special leave.
4. The
Fifth Central Pay Commission had gone into the pay scales of various categories
of employees in the Railways also. The Pay Commission had generally recommended
equivalent revised scales of pay for the existing scales of pay except where it
had thought it necessary to effect improvement on the basis of recruitment
qualifications, nature of work and so on. On the recommendations of the Fifth
Pay Commission the Government of India had revised the scales of pay of its
employees with effect from 1.1.1996. When certain organizations of employees
made complaints of alleged anomalies in the revised pay scales, the Government
of India had constituted Anomalies Committees at the national and departmental
levels. The typists in the Railways had also complained of certain anomalies
and those grievances were considered by the Departmental Anomalies Committee.
On the basis of the report of the Anomalies Committee, typists in English and
Hindi language were given relief but with effect from 31.1.2000. It is being
dissatisfied with this that the typists approached the Central Administrative
Tribunal, Calcutta.
5.
According to the Union of India, the Railway establishment has been separately
dealt with by the Fifth Central Pay Commission which had made specific
recommendations for the cadre of ministerial staff of Railways. They are
contained in paragraph 83.225 of the Report. It is the further case of the
Union of India that the Pay Commission had not made any specific recommendation
for the category of typists in Railways while dealing with them. Under
paragraph 83.296 of its Report, the Pay Commission has stated that all posts in
Organizations other than those specifically discussed are in standard scales of
pay and they may be placed in corresponding replacement scales of pay. Therefore,
based on that recommendation typists in the Railways have been allowed standard
replacement pay scales.
6.
Learned Senior Counsel appearing on behalf of the appellant contended that the
cadre of typists and the cadre of clerks in the Railways are distinct with
distinct duties. A conscious decision was taken not to merge the two cadres. A
limited decision was taken to reduce the number of posts on the lowest rung at
the typist cadre and the posts so reduced were to correspondingly increase the
strength of the cadre of clerks. The decision was that there was to be no
merger.
The
Fifth Pay Commission, while dealing with the Ministry of Railways had dealt
with its clerical staff at paragraph 83.220 and 83.225. In paragraph 83.220 the
Pay Commission dealt with the pay structure of the Ministerial Staff of
Railways, subordinate staff and recommended the various pay scales.
In
paragraph 83.225 it dealt with the Ministerial Staff and officers other than
subordinate officers and recommended a pay structure for them. In paragraph
83.296 it was recommended that all posts in organizations under the Ministry
other than those specifically discussed by the Pay Commission in the concerned
Chapter are in standard scales of pay and they may be placed in the
corresponding replacement scales of pay recommended by it. According to the
appellant all the relevant aspects were taken note of by the expert body, the
Fifth Pay Commission and it had dealt separately with the Ministry of Railways.
But it has deliberately chosen not to comment on the pay structure of the
different hierarchies of typists and had left their pay scales to be determined
in terms of the standard scales of pay as provided in paragraph 83.296. It is,
therefore, the submission on behalf of the appellant that the Commission had
taken a conscious decision to deal differently with the cadre of typists and
the cadre of clerks and hence the typists cannot claim the benefits which were
not given to them by the Fifth Pay Commission. The fact that they were enjoying
the same pay scales before the Fifth Pay Commissions recommendations would
not make any difference in the light of the recommendations of the Fifth Pay
Commission. If parity, as claimed is to be given, it would amount re-writing
the report of the Pay Commission. The Central Administrative Tribunal and the
High Court had done this by granting the reliefs claimed and consequently they
have acted outside their jurisdiction while exercising the power of judicial
review. A mandamus has been issued to merge the cadre so to say; that is not
permissible. It is pointed out that the peculiar facts of the services in the
Railways had been specifically taken note of by the Fifth Pay Commission and
the Commission had observed that they had considered the pay structure of
ministerial staff for the Railways in the context of all pattern of subordinate
officers and pay structure in different railway categories and pay structure of
different categories where graduates were inducted into the cadre. It was also
submitted that a conscious decision was taken with a view to grant higher pay
scale because one third of the strength of senior clerks was that of directly
recruited graduates and a higher pay scale has been given to them on the basis
of educational qualifications. The recommendation in paragraph 83.296 was also
made by the Commission based on its appreciation of all the relevant
circumstances relating the service in Railways.
7. It
is contended on behalf of the respondents and interveners that the Fifth Pay
Commission had found that 26 categories of employees were common in various
ministries and organizations under the Government and they are listed in the
Report. The matter of fixation of pay scales in respect of those 26 common
categories like accountant and typists etc. were considered in Chapter 55. In
respect of language typists the Pay Commission had recommended that language
typists can be divided into four categories, typists in English language
typists, Hindi language typists, typists in Indian languages other than Hindi
and English and typists in foreign languages. Typists in English and Hindi
language form part of the general cadre of an orgnisation. They are treated at
par in the matter of pay scales, promotional avenues etc. as per paragraph
55.152 of the Report. It is the further contention that the recommendations in
respect of pay scales for clerical cadre in the Railways is contained in
paragraph 83.225 and after considering the relevant aspects, a pay structure
for the Ministerial staff was specifically recommended. In paragraph 83.295 it
was stated that recommendations of common categories like EDP staff, typing
staff, official language and canteen staff had been made in the Chapter on
common categories. It is, therefore, the case of the respondents that on a
combined reading of the above paragraphs it can be seen that the language
typists are entitled to the same pay scales as have been recommended by the
Fifth Pay Commission in respect of the clerical cadre. No separate
recommendation was made in view of the fact that the matter was specifically
covered under the common categories. It is the submission on behalf of the
respondents that paragraph 83.296 does not have application because that dealt only
with the categories of employees whose cases have not been dealt with either
under common categories in Chapter 55 or under specific categories in paragraph
83.1 to 83.295.
8. In
answer, it is pointed out on behalf of the appellant that paragraph 83.295 has
no relevance.
Paragraph
55.152 relied on was only a recommendation with regard to typists in the pay
scale of Rs.950-1500 and this was clear from the statement as such we
recommend that the posts of language typists be merged with the clerical cadres
of the respective organizations/central graduates clerical, service in the case
of central graduates in the pay scale of Rs.950-1500. This will ensure adequate
promotional opportunities for those typists. It is also pointed out that
paragraph 55.154 dealt with official language typists and it was noticed that
the posts were very few and there was scarcity of staffs. Since the candidates
are required to possess higher qualifications it was recommended that they
should form a separate and distinct category entitled to better remuneration.
It was, therefore, recommended that direct entry in their case may be made in
the pay scale of Rs.1320-2040. According to the appellant, from the above it is
apparent that the specific recommendation was with regard to language typists
in the pay scale of Rs.950-1500, there was a specific recommendation to merge
them with the clerical staff of respective organizations, there was no
recommendation vis- `-vis typists in other pay scales in paragraph 55.154 which
dealt with the higher qualification and, therefore, it is a case where
paragraph 83.296 squarely applies and all that the typists are entitled to are
corresponding replacement pay scales recommended by the Fifth Pay Commission.
We find considerable force in the contention of learned counsel for the
appellant that the plea that categories other than categories of Rs.950-1500
are also required to be merged or are required to be given the same treatment
is not borne out and that the recommendation is limited to the language typists
in the scale of Rs.950-1500. When there is a specific chapter dealing with the
Ministry of Railways, the general recommendation regarding typists in the
limited pay scale of Rs.950-1500 could not straight away be made applicable to
other pay scales and even if there was any recommendation for merger, so long
as the same has not been accepted it may not be appropriate for the tribunal or
the court to issue a direction in that regard.
Union of India & Anr. [JT 2006 (10)
479] that the recommendations of Pay Commissions are subject to acceptance or
rejection. Speaking for the Bench, one of us (H.K. Sema, J.) stated:
It
is well settled principle of law that recommendations of the Pay Commission are
subject to the acceptance/rejection with modifications of the appropriate
Government. So, unless the Government has accepted the recommendation to
merge the cadres, the Court cannot proceed on the basis of the recommendation
alone or to direct the Government to accept the recommendation. In this context
we have also to take note of the decisions of this Court in Dev Kumar Mukherjee
(1995 Suppl. (2) SCC 640) that the recommendations of pay scales are not open
to judicial review and the one in State of Uttar Pradesh vs. Ministerial Karamchari
Sangh (1998 (1) SCC 422) to the effect that the evaluation of typists for the
purposes of pay scales must be left to the expert body. The role of the Pay
Commission and that of the court has also been dealt by the decision of this
Court in Saurabh Chaudri and others vs. Union of India and others (2003 (9)
SCALE 272) and M.P. Rural Agricultural Officer Association vs. State of M.P. (2004 (4) SCC 646). In the latter decision it was
held by this Court that pay commissions are constituted for evaluating duties
and functions of the employees and the nature thereof vis-`-vis the educational
qualifications therefor. Although the pay commission is an expert body, the
State in its wisdom and in furtherance of its valid policy may or may not
accept its recommendations.
10. On
going through the relevant paragraphs of the Report of the Fifth Pay Commission
in the light of the arguments raised before us, we are of the view that as far
as the staff in the Railways is concerned, for whom no specific provisions
have been made, it would be paragraph 83.296 that would apply and if it is so,
the pay scale of the typists not specifically dealt with would be corresponding
replacement scale of pay. The specific direction in paragraph 55.152 relied on
by the respondents applies only to typists in the scale of pay in Rs.950-1500
or it is confined to that category only and the same cannot be extended and
paragraph 83.295 invoked to rope in others not fitting in with that category.
11.
Though the tribunal noticed the decision in State of U.P. and others vs. J.P. Chaurasia
and others (1989 (1) SCC 121), it has proceeded on the footing that since the
Commission had recommended that the posts of language typists be merged with
the clerical cadre even though that has not been done, a direction still could
be issued for grant of benefits of the same pay scales as are applicable to the
senior clerks, head clerks and office superintendents Grade II, to the
respondents with effect from 1.1.1996. In this context, the tribunal has also
relied on the fact that on the recommendation of the Anomalies Committee the
appellants have accepted the demand of two sets of typists for grant of higher
set of pay scale equivalent to their counter parts in the clerical cadre. It
has held that on the same analogy there cannot be any justification to deny
benefits to typists as a whole.
12. We
are afraid that the tribunal has exceeded its jurisdiction in issuing the
direction, it has issued. The fact that notwithstanding the Fifth Pay
Commission not recommending, particularly, the payment of higher scale to two
sets of typists, typists in English language and typists in Hindi language, the
Government chose to give them relief with effect from 31.1.2000 would not
justify an inference of discrimination or a finding that the authority has
acted arbitrarily or unreasonably. As this Court has clarified in the decisions
adverted to, it is for the Government to act on the report of the Pay
Commission or either to accept or not to accept its recommendation. Once the
recommendations of the pay commission are accepted, in full, it could also give
effect to it from the date recommended in that behalf. But when admittedly no
provision was made in respect of the English and Hindi typists and they pointed
to the anomalies and the Government on the basis of the recommendation of the
Anomalies Committees decided to given them the scale with effect from
31.1.2000, it could not be held to be discriminatory or to be beyond the power
of the Government.
When a
concession was being extended as distinct from implementing a specific
recommendation of the Pay Commission with reference to a particular point of
time, it is open to the Government to provide that the benefit it proposes to give,
would be available only from a notified date.
As
this Court has observed, neither the Central Administrative Tribunal nor the
High Court, can direct the merger of any cadre. That is a policy decision for
the Government to take. So long as it is not done, it is not open to the
tribunal or the court to issue directions in that regard and to follow it up
with what are thought to be consequential directions.
13. We
may in this context notice that the Central Administrative Tribunal, Principal
Bench, Delhi dealing with a similar claim took
up the position on the basis of decisions of this Court, that the tribunal
would have no jurisdiction to issue the directions sought for by the employees.
It is submitted that the correctness of the said decision has been questioned
in the High Court at Delhi. Therefore, it is not necessary for
us to make any observation regarding that decision. But we note that, that
tribunal declined jurisdiction in similar circumstances.
14.
Once we find that it was open to the Government to extend a benefit to a set of
its employees with effect from a particular day on the basis of some anomaly
found in the report of the Fifth Pay Commission, there would arise no
discrimination because the very implementation of the Fifth Pay Commission
Report would not entitle the respondents to any benefit. The very right to
their benefit arose because of the decision of the Government to extend to them
a particular benefit not specified in the Fifth Pay Commission Report. It is,
therefore, not possible to postulate that the decision of the Government must
be given retrospective effect and if no such effect is given, the tribunal or
court can interfere and direct the giving of such retrospective effect.
Once
it is found that paragraph 83.296 is attracted to the case, it has to be found
that the applicants before the Tribunal were not entitled to any relief.
15. We
are, therefore, of the view that the Central Administrative Tribunal has
exceeded its jurisdiction in issuing the directions it has issued and the High
Court was in error in not setting them aside. We, therefore, allow these
appeals and setting aside the decision of the High Court and that of the
Central Administrative Tribunal dismiss the original applications filed before
the Central Administrative Tribunal, Calcutta. We direct the parties to suffer their respective costs.
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