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2005 DIGILAW 681 (KER)

Union of India v. S Ashok Kumar

2005-10-26

A.K.BASHEER, M.RAMACHANDRAN

body2005
JUDGMENT M. Ramachandran, J. 1. By order dated 17-05-2005, the Central Administrative Tribunal, ErnakulamBench in O.A. No. 408 of 2004 had disposed of the case and a direction hadbeen issued to the Union of India and the Central Administrative Tribunal,Ernakulam Bench to grant the benefit of the scale Rs. 5500-9000 to theapplicant with effect from 01-01-1996 and to pay the arrears within two monthsfrom the date of the order. It had also been declared that the applicant wouldbe entitled to promotion to the post of Assistant Library & Information Officeron completion of three years in the upgraded scale of Rs. 5500-9000. Thedirection was to the following effect: "We also direct that in pursuance of Annexure A3 memo read with Para55.180 of the Vth CPC Recommendations accepted by the Government, theapplicant would be entitled to promotion to the rank of Assistant Library &Information Officer on completion of three years in the upgraded scale of Rs.1640-2900 (5500-9000) as enjoined in the Review Committee Recommendations accepted by the Government way back in 1990. If thecategorisation is accepted, and a qualified incumbent is in position, then grantof a legitimate benefit by upgrading the existing post of Junior Librarian to thatof Assistant Library and Information Officer should pose no problem at all. Theapplicant however would be entitled to only deemed promotion to that postw.e.f. 1.1.1999 and would be entitled to actual financial benefits in terms ofhigher pay and increments accrued from 1-1-1999 notionally carried forwardfrom the prospective date of actually joining the higher post". This order is under challenge in the writ petition, filed at the instance of theUnion of India as also the Administrative Tribunal, on the administrative side. 2. The applicant in the Original Application (respondent herein) is working asJunior Librarian in the Central Administrative Tribunal, Ernakulam Bench.According to him, he was aggrieved by the non implementation of the"accepted recommendations of the 4th and 5th Central Pay Commissions andconsequent denial of scales of pay as applicable to Library staff of otherCentral Government Ministries/ Departments." He is a Postgraduate and holdsPostgraduate degree in Library Science as well. While working as Sub Editor(Library) at the Central Reference Library, Calcutta, he had been selected bythe Staff Selection Commission and appointed as Junior Librarian in theCentral Administrative Tribunal, Ernakulam Bench with effect from27-03-1992. He is presently accommodated in the replacement scale of pay ofRs. 5000-8000. While working as Sub Editor(Library) at the Central Reference Library, Calcutta, he had been selected bythe Staff Selection Commission and appointed as Junior Librarian in theCentral Administrative Tribunal, Ernakulam Bench with effect from27-03-1992. He is presently accommodated in the replacement scale of pay ofRs. 5000-8000. According to him, a representation highlighting his grievances,addressed to the Chairman, Central Administrative Tribunal dated 10-10-2003,did not evoke response and the application before the Tribunal (O.A. No. 408of 2004) had been filed in the aforesaid circumstances. As could be seen fromthe representation, because of the non implementation of the OfficeMemorandum dated 24-07-1990 follow up measures were not coming up andhe was aggrieved by the non implementation of the Central Governmentdecision regarding the cadre restructure of Library staff of the CentralGovernment Departments. The posts of. Library staff in the CentralAdministrative Tribunal were created without study of cadre management andas a consequence he was finding it difficult to develop his career andprospects. 3. During the pendency of the application, in reply to the letter seen to havebeen written by the Principal Registrar of the Central Administrative Tribunal,New Delhi, the Government of India, Ministry of Personnel, Public Grievancesand Pensions on. 18-05-2004 informed the Registrar that employees of CATare not covered by the orders regarding the implementation ofrecommendation of the 5th Central Pay Commission in respect of Library Staffas per Office Memorandum dated 21-02-2002. The applicant filed that it wasnot a positive approach. Thereupon, the applicant had amended the OriginalApplication and included a prayer to quash the above said order as well. Therequest made in effect therefore was to make available the benefits of therevised pay scales effective from 01-01-1996 as might have come about interms of Annexure A3 Office Memorandum dated 21-02-2002. 4. The Tribunal had, as referred to earlier, granted the reliefs substantially,although it had been ordered that he would not be entitled to claimretrospective upgradation of the entry post. As a consequence, he was to begranted the pay scale of Rs. 5500-9000 with effect from 01-01-1996 andresultantly was to become eligible for promotion as Assistant Library andInformation Officer on completion of three years in the above said scale. Thisorder is now under challenge. 5. We had heard Sri. John Varghese, Assistant Solicitor General of India onbehalf of the petitioners and Sri. T.C. Govindaswamy on behalf of therespondent. 6. 5500-9000 with effect from 01-01-1996 andresultantly was to become eligible for promotion as Assistant Library andInformation Officer on completion of three years in the above said scale. Thisorder is now under challenge. 5. We had heard Sri. John Varghese, Assistant Solicitor General of India onbehalf of the petitioners and Sri. T.C. Govindaswamy on behalf of therespondent. 6. On behalf of the Government of India, it is submitted that the order passedby the Tribunal is misconceived beyond its powers, and in any case,unsustainable. It is argued that even if there was any inherent justifiability inthe claim, this was not one which could be resolved on the judicial side, as thematter involved a policy to be implemented in general terms. OfficeMemorandum of 21-02-2002 had been issued restricting its operation in favourof Librarians working in the Departmental Libraries. This itself had beenbrought about after due deliberations and for sound reasons. If the Tribunalfelt that there was any discriminatory element in the order, especially when theGovernment had clarified by Annexure A5, that the O.M. was not intended tocover the employees of the CAT, what was expected of the Tribunal was toissue orders directing the Government to take notice of the situationsuggesting remedial measures to counter the mischief. By granting adeclaration, practically the Tribunal had legislated on the field resorting topowers of the Central Government and the order required to be set aside.Counsel had adverted to judicial pronouncements touching on the subject, andsubmitted that the order, as is presently stood, is not sustainable. 7. On the other hand, Mr. Govindaswamy, appearing for the respondent,submits that evidently the Tribunal was aware of the entire situation and hadexamined the issues thoroughly and the directions had been issued beingcareful enough to see that unnecessary financial burden had not been cast onthe Government, but simultaneously the recognisable rights of an employeewere duly upheld. The directions could be understood only in the aforesaidmanner and no interference therefore was warranted. It is further submittedthat, as a group, qualified Librarians are very few in the Central AdministrativeTribunals and the implementation of the directions would not have cast unduestrain on the Government and this also is a circumstance for this Court to keepthe order in tact, as the employee would have been subjected to greathardship and prejudice, if the matter was again left open indefinitely. We mayexamine the issue in the above said backgrounds. 8. We mayexamine the issue in the above said backgrounds. 8. The case presented before the Tribunal was a grievance pointing out thatthe representation pending for a long time was not being appropriatelyconsidered and the benefits that would have come to be granted on therecommendations of the 4th and 5th Central Pay Commissions were beingunnecessarily kept back. The trend of the application itself showed that theattempt of the applicant was to get a declaration, and it was not one wherethere was a request made for enforcement of a claim which stood alreadybeen recognised. As Sri. John Varghese points out, the basic issue was as towhether the Library Staff of CAT were entitled to higher emoluments, as wouldhave been payable to their counter parts of the Departmental Libraries. Thisaccording to him was a policy decision. Sri. Govindaswamy submits that inview of S.13 of the Administrative Tribunals Act, which provides that theappropriate Government is to determine the nature and categories of theofficers and other employees required to assist a Tribunal, in the discharge ofits functions and the salaries and allowances and conditions of service of theofficers and employees of a Tribunal shall be such as may be specified by theRules. R.4 of the Central Administrative Tribunal (Staff) (Conditions of theService) R.1985, according to him, laid down that the conditions of serviceincluding matters of pay and allowances are to be regulated from time to timeas applicable to the officers and employees belonging to Group 'A', Group 'B',Group 'C and Group 'D' of the Central Government of the correspondingscales of pay stationed at these places automatically. When the reports of PayCommissions are accepted and pay scales recommended, the staff of CAT, asof right, becomes entitled to such rights. Therefore, the technical objectionraised by the Government could not have been available to them. When theTribunal had found that there was hostile discrimination and the applicant washighly qualified and came within the parameters of the orders, there was nonecessity for remitting the matter for any fresh consideration. 9. Mr. John Varghese refers to the judgment of the Supreme Court reported in State of Punjab v. Amar Nath Goyal ( 2005 (6) SCC 754 ), and especiallyPara.28 of the judgment. It was a case where the Court examined the issue asto whether the final recommendations of the Pay Commission were binding onthe Government. 9. Mr. John Varghese refers to the judgment of the Supreme Court reported in State of Punjab v. Amar Nath Goyal ( 2005 (6) SCC 754 ), and especiallyPara.28 of the judgment. It was a case where the Court examined the issue asto whether the final recommendations of the Pay Commission were binding onthe Government. Counsel invites our attention to the observations made bythe Supreme Court viz., that when "the Central Government took a consciousstand that the consequential financial burden would be unbreakable .... it istrite that the financial recommendations of the Pay Commission were not ipsofacto binding on the Government, as the Government had to accept andimplement the recommendations of the Pay Commission consistent with itsfinancial position". Mr. John Varghese submits that this observation is pointerto the jurisdictional power of the Government to exercise its discretion, inrespect of recommendations. He points out that the Pay Commission itselfrefrained from giving recommendations, so as to cover the Libraries in awholesale manner, and left the decision to be taken by the Government, asthe issue was complex and required further minute attention. 10. He had also adverted to the case reported as Secretary. Finance Department and others v. West Bengal Registration Service Association andothers [1993 Supp. (1) SCC 153]. Mr. Justice Ahmadi, as he then was, had inprecise language discussed the principles, especially in Para.12 of thejudgment. Equation of posts and determination of pay scales, the Courtobserved, were primarily the function of the executive and not of the judiciary.Ordinarily courts will not enter upon the task of job evaluation. "There can,therefore, be no doubt that equation of posts and equation of salaries is acomplex matter which is best left to an expert body unless there is cogentmaterial on record to come to a firm conclusion that a grave error had crept inwhile fixing the pay scale for a given post and Court's interference isabsolutely necessary to undo the injustice". The principles almost akin to theabove laid down by the Supreme Court in State of Haryana and another v.Haryana Civil Secretariat Personal Staff Association [2002 (2) SCC 72) as well as State of U.P. v. Johri Mal [ AIR 2004 SC 3800 ] also had been relied on. 11. The principles almost akin to theabove laid down by the Supreme Court in State of Haryana and another v.Haryana Civil Secretariat Personal Staff Association [2002 (2) SCC 72) as well as State of U.P. v. Johri Mal [ AIR 2004 SC 3800 ] also had been relied on. 11. Controverting the contentions, relying on the observations made by theSupreme Court in Randhir Singh v. Union of India [ AIR 1982 SC 879 ] as also Mohinder Singh v. Chief Election Commissioner [ AIR 1978 SC 851 ] Sri.Govindaswamy submits that the principle as above has to be understood withreference to these judgments. He submits that Annexure A5 is bald in everyrespect and it is a recognised principle that when a statutory functionarymakes an order based on certain grounds, its validity must be judged by thereasons so mentioned and cannot be supplemented by fresh reasons in theshape of affidavit or otherwise. However, the counsel submits that the principlecannot be absolute and rigid, and at least in certain circumstances attendantfacts would have to be noted. With respect to Randhir Singh's case, it ispointed out that Art.14 of the Constitution enjoins the State not to deny anyperson equality before the law or the equal protection of the laws. Equalityclauses of the Constitution must mean something to everyone. Such clausescan have substance only if equal work is remunerated equally. Questionsconcerning wages and the like, mundane they may be, are yet matters of vitalconcern and the equality clauses can have significance only in thisbackground. Counsel contends that the default or lethargy of an administrativebody should not have therefore interfered with the right of equality, as thedelay of over a decade had been cutting deep wounds on the applicant. 12. We cannot but observe that the Tribunal has been too liberal in acceptingthe case of the applicant, and the criticism that they had exceeded theirpowers, while passing Ext. P3 order, cannot go unnoticed. Ideas of equalityand equal pay are abstract principles and have to be tested with the facts andcircumstances of identical cases and situation. The applicant had approachedthe Tribunal initially with a request, whereby a grievance was placed that theChairman of the Central Administrative Tribunal was keeping silence over arepresentation, submitted by him on 10-10-2003. P3 order, cannot go unnoticed. Ideas of equalityand equal pay are abstract principles and have to be tested with the facts andcircumstances of identical cases and situation. The applicant had approachedthe Tribunal initially with a request, whereby a grievance was placed that theChairman of the Central Administrative Tribunal was keeping silence over arepresentation, submitted by him on 10-10-2003. The request was to interventin the matter for implementation of orders of the Government of India dated 24-07-1990 and 21-02-2002 regarding restructuring of posts and pay scales ofLibrary Staff of the Central Administrative Tribunals. A further cause of actionhad arisen by the issue of Annexure A5. But the question is as to whether itwas one for implementing a crystallised right, or one to be carved out from themass of materials available, which was to be entrusted to the experts in thefield. We can see from the pleadings that the 4th Central Pay Commission itself had observed in Para.11.63 of its report as following: "11.63. There are difficulties in reclassifying the posts of librarians andspecifying their qualifications and recruitment levels. The pay scales,qualifications and level of qualifications and level of responsibility will reallydepend on several factors, mainly on the size of the library, its character andimportance. To draw up suitable proposals in this regard a committee may beconstituted to undertake this work. Pending such a review by the Committee,we recommend that librarians and library staff may be given the revised scalesof pay proposed in Chap.8." Therefore, there was no final determination or recommendation. A reviewcommittee had come to be appointed and its recommendations were acceptedby the Government. The orders passed on such representations by theReview Committee is Annexure A1. The Government had thereupon decidedto evolve a pay structure for Library Staff, prescribing for ten designations and twelve scales of pay. In the matter of placement of existing Library Staff, whathad been provided was that employees in the scales of pay in the table givenwere to be placed in the revised scales shown against them, provided theincumbent fulfilled the recruitment qualifications. 13. There was specific direction that each Administrative Ministry is to initiateaction to categorise the Libraries under their control, based on the parametersindicated in the Office Memorandum. Only after this categorisation, scales ofpay and designations were to be introduced. 13. There was specific direction that each Administrative Ministry is to initiateaction to categorise the Libraries under their control, based on the parametersindicated in the Office Memorandum. Only after this categorisation, scales ofpay and designations were to be introduced. We notice that it was alsoprescribed that in case the existing incumbent is in a lower scale of pay thanthe scale determined on the basis of categorisation, he may be considered forappointment in the higher scale provided he fulfils the recruitmentqualifications. 14. Annexure A1 prescribed the formula for categorization of Libraries.Government Libraries were to be grouped into six categories andrecategorisation were to be undertaken after every five years from the date ofinitial fixation of category. Annexure A2 refers to the implementation of thereview committee report. The Review Committee had done considerable workand had prescribed that each category of Library should have professionalsposted in designated scales. Particular reference was made to the NationalLibrary, Calcutta, Central Reference Library, School Librarians and otherDepartmental Libraries. It is meaningful to note that there was nocategorisation as far as CAT Librarians are concerned. Consequent to thecategorization, by Annexure A3 dated 21-02-2002, pay scale of DepartmentalLibrarians were revised effective from 01-01-1996. The entry pay scale ofDepartmental Librarians possessing minimum qualifications were to be Rs.5500-9000 by merging the existing posts. 15. However, it so happened that as the issue relating to Librarians attachedto CAT was not dealt with, the benefit of such orders could not haveautomatically made applicable to staff working there. Initially declared in theyear 2002, this had been reiterated by order dated 18-05-2004. 16. The case of the applicant is built upon the circumstances that there waslethargy on the part of the concerned authorities to place the issue of CATstaff before the Review Committee. We are not told about the reason as towhy the staff are even now kept away from comparison. But, per se whileAnnexure A3 proceedings were drawn up, there was nothing to show that therecommendations covered the CAT staff. It would have been possible for theTribunal to grant the reliefs only in case there were specific orders passed bythe Central Government, at least in one way or the other. The argument of Sri.Govindaswamy that the staff are entitled to be recognised as CentralGovernment employees is beside the point. We cannot but see that difficultyarises because the Pay Commission had not made any specificrecommendations in respect of any group attached to any Libraries. The argument of Sri.Govindaswamy that the staff are entitled to be recognised as CentralGovernment employees is beside the point. We cannot but see that difficultyarises because the Pay Commission had not made any specificrecommendations in respect of any group attached to any Libraries. Thematter was left to be decided by a Review Committee and the ReviewCommittee had no occasion to consider the case pertaining to the staff ofcentral Administrative Tribunal. Discrimination perhaps can be visualised tothe extent that they had been left out from being considered, on the merits oftheir claims, or for conferment of benefits. But the principle of "equal pay" maynot at all arise. As pointed out by the Additional Solicitor General, the propercourse would have been for the Tribunal to direct the Central Government toconsider the claims of a group, which is to be considered as left out andcompel the Government to take a decision in respect of this category, even ifthe opinion of the Tribunal was that stepmotherly treatment is meted out. 17. The argument as above appears to be sound and sustainable. We canalso see that the real aspects had not been placed before the Tribunal, as theRegistrar of the Tribunal had been authorised to swear to the counter affidaviton behalf of all the respondents. Situated as he is, the Registrar was not in theknow of things. But the lapse as above should not be a reason by itself for adrastic decision. The directions issued by the Tribunal quashing Ext. P5 do notappear to be based on any reason, and it should not have been possible forthe CAT to direct inclusion of persons, like the applicant, as coming within thepurview of Annexure A3 for grant of reliefs. The observation made in 1993(Supp. (1) SCC 153 (cited supra) is fully relevant here. Consequently, Ext. P3will stand set aside. 18. Additional Solicitor General submits that it is not as if the Government isunconcerned about the grievances that had been raised by the applicant, andas could be gatherable from his representation dated 10-10-2003. It issubmitted that if the matter is appropriately taken up by him before the CentralGovernment, without discriminating him, and recognising the claims to theextent tenable, appropriate follow up orders should be passed. May be thereare only a very few persons attached to the Libraries of the CATs and evenamong them there may be very few qualified hands. It issubmitted that if the matter is appropriately taken up by him before the CentralGovernment, without discriminating him, and recognising the claims to theextent tenable, appropriate follow up orders should be passed. May be thereare only a very few persons attached to the Libraries of the CATs and evenamong them there may be very few qualified hands. From the pleadings, it isclear that the respondent is industrious and has acquired qualifications inexcess of the normal requirements compared with the post he holds. Hisclaims are to be treated with an amount of compassion, and recognising his merit. 19. If a representation is filed by the respondent as above before the firstpetitioner - Secretary to Government, Government of India, we direct that theyshould consider the same and take an expeditious decision on therepresentation. In any case, the decision has to be communicated, preferablyafter hearing him, within a period of three months from the date of receipt ofsuch representation, and if feasible, on the basis of the expertise theGovernment has already gathered from the report of the Review Committee. The writ petition will stand allowed.