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2011 DIGILAW 594 (CAL)

Kisalay Mukherjee v. UNION OF INDIA

2011-04-28

ASHIM KUMAR BANERJEE, MRINAL KANTI CHAUDHURI

body2011
Judgment Banerjee, J. 1. SHORT question involved in this Tribunal application is whether the Central Government was right in refusing to extend special incentive to the Ministerial Staff of Central Investigation of Bureau (hereinafter referred to as CBI) whereas identical benefit was extended to the staff working in Research and Analytical Wing (hereinafter referred to as RAW) and Intelligence Bureau (hereinafter referred to as I.B.) 2. THE petitioners were working as Ministerial Staff working in CBI at Kolkata. CBI had two groups of staff, one being the executive staff i.e. the investigating people working as Constable up to the post of Director and the other group called as Ministerial Staff who worked in the office as clerical cadre and Class-IV employees. All of them were Government servants within the meaning of Article 311 of the Constitution of India. THE Central Government declared incentive allowance vide circular dated September 11, 2006 to the executive staff working in CBI at the rate of twenty-five per cent of Basic Pay Dearness Allowance up to the rank of Senior Superintendent of Police and at the rate of fifteen per cent of the Basic Pay Dearness Allowance for the officers above the rank of Senior Superintendent of Police. This incentive allowance was subject to conditions imposed by the said circular. Similar benefit was extended by the Central Government, RAW and Investigation Bureau. However, when the Central Government extended the said benefit to the other two agencies they termed it as special security allowance at the rate of fifteen per cent of the Basic Pay and Dearness Allowance pay to all employees irrespective of their status meaning thereby, the Ministerial Staff working in those two agencies were also extended such benefit as would appear from the circular dated June 19, 2006 in case of RAW and June 16, 2006 in case of intelligence Bureau (I.B.). THE Joint Director (Administration), CBI, New Delhi appreciated the anomaly and vide circular dated October 17, 2006 observed that the matter had been considered by the head office. THE said circular clearly stated, "it has been the endeavour of the CBI to ensure equity among all his staff members as a well knit close family". By the said circular the Joint Director informed that the matter had already been sent to the Pay Commission for their consideration. THE said circular clearly stated, "it has been the endeavour of the CBI to ensure equity among all his staff members as a well knit close family". By the said circular the Joint Director informed that the matter had already been sent to the Pay Commission for their consideration. THE applicants before us also referred to a minutes of the meeting held by the Joint Director on November 1, 2006 when the anomalies were discussed in detail and the hierarchy of CBI appreciated the anomaly and found justification in the claim and contention of the applicants. The Pay Commission considered the issue and observed that the pay of the staff of CBI was duly considered and it did not require any further incentive allowance. The under Secretary vide clarification dated October 21, 2008 appearing at page 31 of the supplementary affidavit informed that the proposal for grant of special incentive allowance for the Ministerial Staff in CBI had been examined by the Department. Since the 6th Pay Commission had recommended for maintaining the status quo in this regard such proposal could not be agreed to. We may also refer to page 34 of the supplementary affidavit whereby the under Secretary to the Department of Expenditure informed that the proposal had been found not feasible to agree with the proposal for grant of special incentive allowance to ministerial cadre of CBI. The under Secretary, however, observed that performance related incentive scheme would be pronounced very soon. The applicants contended before us that no such scheme was ever formulated although the said clarification and/or circular was issued two years ago on March 13, 2009. We also find that the hierarchy of CBI recommended such benefit as was recorded by the Department of Expenditure appearing at page 28- 30 of the supplementary affidavit. 3. FROM the facts, as referred to above, it appears to us that although the hierarchy of CBI felt the need of extension of identical benefit to the Ministerial Staff, the Central Government refused it, on the ground, that such proposal was not acceded to by the Pay Commission. While we look to the record pertaining to Pay Commission we find that the Pay Commission misconstrued the claim and the recommendation. While we look to the record pertaining to Pay Commission we find that the Pay Commission misconstrued the claim and the recommendation. The Pay Commission in its 6th Pay Commission Report observed as follows:- "CBI Personnel have demanded additional allowances and better pay package for the nature of duties being performed by them. Ranks of ASI, Head Constable and Constable have been recommended higher pay scales. CBI Personnel are already in receipt of a special allowance of 25% (up to and including the post of Superintendent) and 15% (DIG and above). The amount of this allowance will automatically go up once the recommended pay scales are implemented and will be sufficient to attract the best talent to this agency. Any additional allowance is therefore not necessary. The commission recommends maintenance of status quo in this regard." 4. WE find from the above extract that the claim was refused on the ground that the allowance would automatically go once the recommended pay would be implemented. No additional allowance was thus necessary. The Pay Commission failed to appreciate that the recommendation was not for increase of the rate of allowance for the executive Staff. It was for bringing equity by extending the identical benefit to the Ministerial Staff. If the earlier incentives would be taken care of at the time of revision of pay the pay of the executive would be enhanced whereas the Ministerial Staff would get automatically a reduced pay without the benefit of the incentive already granted to the executive staff earlier. The applicants approached the Tribunal. The Tribunal also misconstrued. They observed that once the matter was referred to Pay Commission as per the order of the Principal Bench in an identical situation no further order need be passed in the application filed by the Kolkata Staff. Pertinent to note, the 6th Pay Commission by that time already rejected the claim of the applicants. Hence, the Tribunal should have gone into the merits of the matter to find out whether such rejection was justified or not. 5. MR. Sagar Bandyapadhyay, learned Counsel for the applicants contended before us that the CBI was sympathetic to its Ministerial Staff as would appear from the minutes of the meeting held by the Joint Director as well as his recommendation to the Ministry for extension of such benefit. 5. MR. Sagar Bandyapadhyay, learned Counsel for the applicants contended before us that the CBI was sympathetic to its Ministerial Staff as would appear from the minutes of the meeting held by the Joint Director as well as his recommendation to the Ministry for extension of such benefit. Earlier the Ministry rejected the prayer on the ground that it would be considered by the Pay Commission. Subsequently, Ministry rejected the prayer as it was turned down by the Pay Commission. Pay Commission, according to MR. Bandyapadhyay, totally misconstrued the issue as would be apparent from the extract quoted above. According to him, the Tribunal should have considered the issue going into the merits of the matter instead of mechanically disposing of the matter on the strength of the order of the Principal Bench passed in an identical situation. MR. Bandyapadhyay further contended that the Central Government never addressed the issue as to how there could be discrimination between two groups of staff discharging identical duty, one in CBI and the other in RAW and IB. Such discrimination was apparent and must be removed, as it would offend the basic structure of our Constitution. He relied on the following decisions:- (a) All India Reporter 1960 Supreme Court Page-896 (M/s. Burn and Co. Ltd. Howrah Iron Works, Howrah v. Their Iron Employees and Another), (b) All India Reporter 1964 Supreme Court Page-472 (Western India Match Co. Ltd. v. Their Workmen), (c) All India Reporter 1964 Supreme Court Page-1633 (State of Rajasthan v. Mukanchand and Others), (d) All India Reporter 1987 Supreme Court Page- 2086 (R.D. Gupta and Others v. it. Governor, Delhi Administration and Others), (e) All India Reporter 1998 Supreme Court Page-783 (Union of India and Others v. Ram Gopal Agarwal and Another), (f) 2007 Volume-IV Calcutta High Court Notes Page-205 (Ghisulal Tailor v. Union of India). 6. OPPOSING the application Mr. R.N. Das, learned Senior Counsel contended that CBI was sympathetic, so was Central Government. However, the Pay Commission considered the issue and rejected the same. Once the issue was rejected by the Pay Commission, Central Government could not override such decision of an expert body. He contended that the fixation, parity or fitment was the job of the executive and was not available for judicial review. According to him, the applicant could move the Department of Public Instruction again. Once the issue was rejected by the Pay Commission, Central Government could not override such decision of an expert body. He contended that the fixation, parity or fitment was the job of the executive and was not available for judicial review. According to him, the applicant could move the Department of Public Instruction again. He also contended that allowing this application would have to an adverse effect throughout the country. The issue was pending before the Delhi High Court in a review petition. Hence, this Court should refrain from entertaining the instant application. He relied on the following decisions:- (a) 2007 Volume-VIII Supreme Court Cases Page-279 (S.C. Chandra and Others v. State of Jharkhand and Others), (b) 2008 Volume-II Service Law Reporter (State of Bihar and Others v. Bihar Veterinary Association and Others). Replying to the submissions made by Mr. Das, Mr. Bandyapadhyay reiterated his contentions and relied on the supplementary affidavit filed on behalf of the applicants. 7. WE have considered the rival contentions. WE fully agree with Mr. Das that fitment was job of the executive. WE could not have any quarrel with the well-settled principle of law as decided by the Apex Court in the case of State of Bihar and Others (supra). WE are, however, of the view that the issue was not properly placed before the Pay Commission. The observation of the Pay Commission made the issue more complex as instead of removing the anomaly it would give rise to further anomaly in case of such special incentives were taken care of in the matter of revision of pay of the executive staff. WE do not know whether it has already been done or not. Whether the applicants would be entitled to such incentive or not, is completely within the domain of the executive. The Pay Commission being a body of expert could also consider the same. WE are only competent to examine the decision- making-process to find out whether the fundamental rights were violated or not. In the instant case, the applicants repeatedly cried hors to contend that identical benefits were extended to RAW and IB whereas they were denied the incentive. Neither the Pay Commission nor the Central Government through the under Secretary ever addressed this issue. Under Articles 14 and 16 of the Constitution every citizen is equal in the eye of law and is entitled to equal protection of law. Neither the Pay Commission nor the Central Government through the under Secretary ever addressed this issue. Under Articles 14 and 16 of the Constitution every citizen is equal in the eye of law and is entitled to equal protection of law. The only exception to the rule is "reasonable classification" with "intelligible differentia". WE are constrained to observe that the respondents miserably failed to show any "reasonable classification" far to speak of having "intelligible differentia". It is common knowledge of all that CBI, RAW and IB are discharging almost similar functions. If identical benefit could be extended to Ministerial Staff of RAW and IB there could be no earthly reason why CBI would be deprived of that. Neither the Pay Commission nor the Central Government or the Central Administrative" Tribunal addressed the issue from this angle. 8. WE are unhesitatingly of the view that the applicants must succeed before us. WE are unable to agree with Mr. Das that the issue could be remanded back to the authority. WE are of the view that the authority once rejected such contention, no purpose would be served by remanding the issue back to them. It would unnecessarily prolong the issue. The application succeeds and is allowed. 9. THE order of the Tribunal is set aside. 10. THE Central Government is directed to extend identical benefit of incentive allowance to the Ministerial Staff as was extended to the executive staff vide circular dated September 11, 2006. We, however, observe that the Central Government would be free to decide on the extent of benefit being the percentage, however the same must maintain parity and must be in co-relation to their colleagues working in RAW and IB unless the Central Government could differentiate them cogently. W.P.C.T. No. 118 of 2008 is disposed of without any order as to costs. Urgent xerox Photostat copy will be given to the parties, if applied for.