JUDGEMENT OF CAT NEW DELHI, IRTSA vs
UOI for Group 'B' to Senior Technical Supervisors
IN THE CENTRAL ADMINISTRATIVE
TRIBUNAL NEW DELHI
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O.A. No.
836 of 1989 |
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T.A.
No.
199 |
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TE PF DECISION ______________ |
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Indian Railway Technical
Supervisors’ Association Petitioner
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Mrs. Shyamla Pappu with
Shri B.S. Manee
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Advocate for the Petitioner(s) |
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Versus |
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Union of India Respondent
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Shri K.K. Patel
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Advocate for the Respondent(s) |
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CORAM
The Hon’ble Mr. Justice Ram
Pal Singh, Vice- Chairman (J).
The Hon’ble Mr. P.S. Habeeb
Mohamed, Member (A).
1.
Whether
Reporters of local papers may be allowed to see the Judgement?
2.
To be referred
to the Reporter or not?
3.
Whether their
Lordships wish to see the fair copy of Judgement?
4.
Whether it
needs to be circulated to other Benches of the Tribunal?
(Judgment of the Bench delivered by Hon’ble Shri
Justice Ram Pal Singh, Vice –Chairman (J).)
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JUDGMENT
Applicant No. 1
is a registered trade union association, representing Indian Railway
Technical Supervisors in loco sheds, workshops, steam-diesel and electric
loco sheds, car sheds and open line. The members of this association are
working as Shop Superintendents, Deputy Shop Superintendents, Loco
Foremen, Asstt. Foremen, Electric Foremen and other similar posts
interchangeable with them. Applicant No. 2 is the General Secretary of
this Association, working as a Deputy Shop Superintendent (Planning) in
Northern Railways Workshop at Kalka. At present, members of this
Association are placed in group ‘C’ of the Railway Department. Members of
this Association are in the scale of Rs. 700 –900, now Rs. 2000 –3200 (RPS)
and Rs. 840-1040 (RS) and Rs. 840-1200 (RS) now equated with Rs. 2375-3500
(RPS). The grievance of the applicants is that the members of this
Association are being denied the status of group ‘B’ by the respondents,
i.e. though they are working in the scales of Rs. 2375-3500 and Rs.
2000-3200, they have been placed in Group ‘C’ while other staff in similar
grades has been placed in Group ‘B’. This, according to them, is highly
discriminatory. Applicants, therefore, pray for the relief, in this O.A.,
filed under Section 19 of the Administrative Tribunals Act of 1985, that a
direction be issued to the respondents to place them in Group ‘B’ instead
of Group ‘C’ as has been done in the case of others like Accounts Officers
(Rs. 2375-3500) on Railways and Stenographers Grade 2000-3200 in the
Central Secretariat in the same scale.
2. The applicants contend in this O.A. that the Third Pay
Commission Report had recommended:
“Posts having maximum of the scale not less than 900 but less than Rs.
1300 be classified in Group ‘B’.”
In
persuance of the above, the respondents in their letter No. P75/PS-1/CS
dated 21.5.76 accepted this position, hence the scale of Rs. 840-1200 and
Rs. 840-1040 ought to have been in Group ‘B’ as the maximum of their scale
was above Rs. 900/- as laid down by the 3rd Pay Commission and
also by the Ministry of Railways. But the respondents in contravention of
this, continued to treat the applicants as Group ‘C’ whereas the
Assistants in Civil Secretariat in the then existing scale of Rs. 400-800
were placed in Group ‘B’.
3. They further contend that the 4th Pay Commission in
Para 8.41 of their Report pointed out that the posts in grade Rs. 840-1040
and Rs. 1200 on the Railway are higher Group ‘B’ posts” and recommended
the integrated of Rs. 2375-3500 for the Technical Supervisors in the said
two scales and a grade of Rs. 2000-3200 for those in the erstwhile scale
of Rs. 700-900. The 4th Pay Commission also mentioned to para
26.49 of the Report that posts “with a maximum of not less to a Rs. 900
but less than Rs. 1300” were at present classified under Group ‘B’. It
recommended in para 26.52
“Central Civil post carrying a pay or scale of pay with maximum of not
less than Rs. 2000 but less than Rs. 4000 be classified as group ‘B’.
The Railway Board in letter dated 30.10.87 has classified in
Group ‘B’ only those posts in scale of Rs. 2375-3500, applicable to
Accounts Officers and other posts of officers in scale of Rs. 2000 – 3500
of all departments. Though the applicants are in the highest scale of Rs.
2375-3500, they have been left out by the respondents in contravention of
the recommendations, only in Group ‘C’. After enumerating examples in
details from other departments in the same scale, the applicants contend
that they have to crawl through 4 grades before they are promoted to
Group ‘B’ posts and that too at the verge of their retirement, the
majority of the members of the Association retire in Group ‘C’ itself.
The applicants also contend that they are victims of hostile
discrimination at the hands of the respondents. After several
representations, the respondents though replied on 23-08-88 by non –
speaking order, failed to give them any reason for this hostile
discrimination. The applicants also contended that after recommendations
of the 4th Pay Commission, while an integrated scale of Rs.
2375-3500 has been given to the Technical Supervisors who were in the
erstwhile scale of Rs. 840-1040 and 840-1200, have been discriminated by
not giving them the status of Group ‘B’, while staff of Accounts
Department in the similar scale of Rs. 2375-3500 has been placed in Group
‘B’. This in brief is the case of the applicants.
4. The respondent in their return have denied the contentions of
the applicants and maintained that while parity in pay scales can be
arrived, parity in status and promotional prospects has to be determined
with reference to the particular needs in the Railway Organization.
According to them, the Ministry of Railways is competent to frame rules
for classification of Railway employees in different groups which may
result in certain variation when compared cannot extend to service
conditions like designation, status, rules for promotion, privileges
etc., which are fixed taking into account the needs and practices
obtaining with Railways. Respondents further contend that they have not
discriminated the applicants against others. There are many others
belonging to the different departments which are in the pay scale of Rs.
2375-3500, who have been classified as Group ‘C’. The applicants,
therefore, cannot claim higher status as a right and have rightly been
classified in Group ‘C’. The 4th Pay Commission in paras 26.50
and 26.52 observed that there were some exceptions to classification where
the grouping does not strictly follow the pattern and as such recommended
that whenever there are deviation. In the existing classification for
these posts, they may continue and the Government may review the
classification in such as and when necessary, etc. etc.
5.
After the arguments of Smt. Shyamala Pappu, the learned counsel for the
applicants, Shri. K.T.S. Tulsi, counsel for the respondents prayed for
filing an additional affidavit. He was permitted by us to file his
additional affidavit. The applicants also filed their rejoinder
affidavit. In the additional affidavit, the respondents contended that
the classification of posts in Central Government/ Railways is not decided
purely on the basis of pay scales alone, as contended by the applicants.
There are various aspects to be looked into by administration, such as
duties and responsibilities of the post, its position in the
administrative set up/hierarchy, its reporting channels, the recruitment
and selection criteria, the discipline and appeal powers /
responsibilities etc. They further contend that immediately after the 4th
Central Pay Commission Report was implemented, the labour federation in
the Joint Consultative Machinery had taken up a similar item in the
National Anomalies Committee, claiming that the classification of posts
should be strictly on the basis of pay scales alone. The said Committee
after consideration did not accept it in view of the fact that for
conferment of gazetted status, there are certain established criteria for
deciding whether a particular post should be declared as gazetted or not.
The
Committee gave its findings that there is no anomaly and this position has
been accepted by the Labour Federations (copy of extract Annex. I and
II). It was also contended that if pay scale alone should be the guiding
criteria for classification then there will be serious anomalies and
administrative chaos, since in the present pay structure, for an employee
in the scale of Rs 2375- 3500 (RPS) classified as Grade ‘C’ (non-gazetted),
the next promotion grade is scale Rs.2000-3500 (RPS) is classified as
Group ‘B’ (gazetted). Thus, the existing Group ‘B’ of Government of India
of Rs. 2000 – 3500 will become irrelevant and will lead to demand on
Government of India to replace the scale by other higher scale, outside
the preview of Central Pay Commission. The respondents then cited
examples with contention that scale of pay alone is not the criteria for,
classification is also born(e) out by the fact that even in other sectors
like education, there are instances on the subject e.g. Selection Grade PG
Teachers have scale of Rs. 2200 – 4000 (similar to Grade ‘A’), but these
teachers are not classified as Grade ‘A’/ not even ‘B’ but are classified
as Grade ‘C’. Head Master / Head Mistress of schools with a pay scale of
Rs. 2000 –3500 which is a lower scale of pay are classified as Group as
‘B’.
6.
In the
rejoinder to additional affidavit, the applicants repudiated the
contentions of the respondents and alleged that the respondents in their
earlier stand had taken the stand it is the pay scale applicable to a post
that normally determines the grade to which it belongs and not the
vice-versa. In the presents era of modernisation and adoption of advanced
technology, the duties, functions and responsibilities of Technical
Supervisors have tremendously increased particularly when the needs of the
Railways is to enhance the speed of the trains with equal emphasis on the
safety of the traveling public. The applicants further contend that
Technical Supervisors apart from their duties of technical nature are also
required to undertake the responsibility of disciplinary powers. In
accordance with the Railway Servants (Discipline and Appeal) Rules, 1968.
Thus they are required to hold disciplinary proceedings and trade tests of
the staff working under them etc. etc.
7.
We have heard
Mrs. Shyamala Pappu, the learned counsel of the applicants and Shri K.T.S.
Tulsi, learned counsel for the respondents. They have argued on the basis
of their pleadings and cited plethora of case laws in support of
contentions. We have also perused the documents of both the parties filed
in support of their contentions. Without unnecessarily burdening the
judgment with the respective contentions of both the learned counsel, we
proceed directly to decide the issues at hand.
8.
Group ‘B’
status has been denied to the Senior Technical Supervisors (Grade Rs. 2000
– 3200 and Rs, 2375 – 3500) by Annexure A – 1, the Ministry’s letter dated
21.5.86, while Accounts Officers in Grade 2375 – 3500 and Stenographers in
Grade Rs, 2000 – 3200 have been classified in Grade ‘B’. It appears that
pay scales from the basis of classification of posts of the Central
Government employees, Including those in the Railway as per
recommendations of the 4th Pay Commission and the Government of
India Notification dated 30.6.87 and 7.7.87 under Rule 6 of the CCS (CCA)
Rules according to which those in the pay scale with maximum of above
Rs.2300 but below Rs 4000, should be classified in Group ‘B’. Though the
counterparts of the applicants in C.P.W.D., M.E.S. and Telecommunications
are all in Grade ‘B’, yet the applicants are denied the same although they
are in the similar pay scale. Furthermore, it also appears that the
applicants are also discriminated against, in respect of their avenues of
promotion vis –a-vis their counterparts in other departments e.g. Junior
Engineers in C.P.W.D., M.E.S., Telecommunication etc. get the Group ‘A’
status after crossing only two grades after joining service as Junior
Engineers (Grade Rs.1400 – 2300 and Rs.1640 - 2900) whereas the Technical
Supervisors on Railways with similar qualifications, duties and
responsibilities rot in Group ‘C’ in their service career in 4 grades
(Rs.1400 – 2300, Rs.1600 – 2660, Rs. 2000 – 3200 and Rs.2375 – 3500), with
only 1 to 2 percent reaching Group ‘B’ status (Annex. I of Ad. Rejoinder
Affidavit). Thus equality of promotional avenues to the applicants is
denied which is violative of Art. 14 of the Constitution. In the case of
Dr. Ms. O.S Hussain v.s U.O.I (AIR 1990 S.C. 311) their Lordships
of the apex court observed:
“7. This court
has on more than one occasion pointed out that provision for promotion
increases efficiency of public service while stagnation reduces
efficiency and makes the services ineffective. Promotion is thus a normal
Incidence of service. There too is no justification why while similarly
placed officers in other Ministries would have the benefit of promotion,
the non – medical ‘A’ Group Scientists in the establishment of Director
General of Health Service would be deprived of such advantage”. It was
directed in this case to the Ministry to frame appropriate rules providing
promotional avenues for the ‘A’ category scientists in non-medical of the
Directorate.
8. Respondents have opposed the prayer of the applicant mainly on
the following grounds.
1. National Anomalies Commission has rejected the demand of grant of
Group ‘B’ status to those in the scale of Rs. 2375 – 3500.
2.
Irrespective of
pay scale, the 4th Pay Commission had recommended for
continuance if Group ‘C’ for those who were in Group ‘C’ prior to the said
Commission.
3.
Pay scale alone
was not the sole criteria for determining the Class or Group to which a
post should belong. Other factors like duties, responsibilities and other
allied factors have to be kept in view.
4.
Certain
guidelines have been laid by the Government for giving Group ‘A’ and ‘B’ (gazetted)
status in Annex.. II of Add. Affidavit of Respondents.
It appears that pay has been held as the determining factor for deciding
class or Group of post as is apparent from the stand of the respondents
in the case S.K. Srivastava (1971S.L.R. (2) 453) and Direct Recruit
Assistants Association (1991 A.T.C. 891). National Anomalies Commission
has concluded, as appears from the Add. Affidavit of Respondents, that
individual cases could, however, be examined as on merits. All exceptions
referred to in Para 26.50 of Pay Commission’s Report to the general pay
limits of classification have all been classified in a higher Group than
would have been as per pay scale. Hence, Pay Commission merely provided
them with a protection from being, downgraded to a lower classification.
No doubt exceptions have also been provided. It can also be observed that
the 4th Pay Commission in the Penultimate lines of 26.52 had
recommended that “Government may, however, review the classification in
such cases (of exception) as and when necessary.” It can thus easily be
concluded that Anomalies commission or Pay Commission did not create any
bar against changing the classification.
9. The stand of the respondents stands negatived by the apex
court in the case of M.M.R Khan & Ors. (JT 10 (3) S.C.1) where it was
observed:
“If by virtue of all these facts, that they are entitled to the status of
Railway employees and that cannot be deprived of that merely because some
other employees similarly or dissimilarly situated may also claim the same
status. The argument to say the least can only be described as any other
argument of the kind has to be disregarded.”
A classification made between the employees on the same pay scale would
be unreasonable. Benefit attached to the post cannot be denied merely on
the ground that the other class performs differently though both the
classes are on the same scale. Where all relevant considerations are the
same, persons holding identical posts in the same pay scale and
discharging similar duties should not be treated differently. Pay scales
do not depend upon mere classification of a post but it depends upon
duties actually performed. A Bench of this Tribunal, in the case Central
Secretariat Direct Recruit Assets. Association (1991) (16) ATC 891)
observed:
“Rule 6 of the CCS (CCA) Rules 1965 requires) that every civil post
should be classified by a general or special order. The factor used for
classification has always been the maximum of the pay scale. The
stipulation in respect of each Group is either that the maximum of the pay
of scale should not be less or should be more than a particular amount but
not more than particular amount. This yardstick has perhaps been chosen
because it is the only factor, which is common to all posts unlike other
factors like educational qualifications, method of recruitment, etc. which
vary widely. Further it is pay scale, which distinguished each post in
terms of its duties and responsibilities and facilitates an arrangement in
a hierarchical order of posts. It is this classification, which follows
the pay scale of a post on the basis of its duties and responsibilities
and not vice – versa”.
Thus, it is the criterion of pay to distinguish one class or grade of
service or post from another. In fixing the pay of a particular post or
the scale of pay of a particular service, this Government considers the
status attached to a particular post or class or class of services. It is
the pay that determines the class to which a post belongs. It proves that
the factor used for classification has always been the maximum of the pay
scale.
10.
Government has
always applied the criterion of pay to distinguish one class or grade of
the service or post from another. A Division Bench of the Delhi High
court in the case of S.K. Srivastava vs. U.O.I. (1991 SLR 453) has
observed:
“The pay itself is determined by the Govt, after taking into account the
nature of duties involved in the post. As the Govt. would have already
taken into account the nature of duties responsibilities and the status of
different posts before classifying them would have indicated the
classification by the fixation of different salaries or any scales, the
courts should be well advised in regarding the any scale of pay of a post
as the principal criterion to determine the rank of the post. Further,
the courts are not in the same position as this government is in
determining the status of a particular post and in comparing those with
the nature of duties of, responsibilities and status of another post. It
would not be advisable therefore, for the courts to ignore the
classification made by the Govt. as indicated by the emoluments fixed by
the Govt. to try to determine afresh rank of a particular post by having
regard to considerations other than the pay especially because these
considerations have already been taken into account by the Govt. fixing
the pay or the pay scale of a particular post.”
11.
We also place
reliance in another judgment of this tribunal rendered in the case of A.M.
Srivastava (O.A.No.17/89 dated 31.7.91. While there may be some weight in
the stand taken by the respondents that there is no specific
discrimination with the category or group to which the applicants belong,
yet we are clearly of the view that there exists no justification for the
exception made as there appears no rational behind it nor there appears
any nexus with the objects sought to be achieved. It is significant that
the 4th Pay Commission Report has been accepted by
the Govt. of India as per Department of Personal & Training Notification
dated 30th June, 1978 (even No. Dated 7th July
1987); Ministry of Personal & Public Grievances and Pension by O.M. dated
1.3.88 has placed Stenographers in the non – secretariat organizations by
which they have classifieds as Group ‘B’ (gazetted). In Railway Board’s
letter dated 21.5.76 has accepted that a post carrying a pay scale like
that of the applicants will be classified as Group ‘B’ subjects to
exception as may be made Railway Ministry.
12.
In view of the
above, we direct the respondent to consider the question of classification
so as to do away with the amorally of the type indicated above.
Consequently, it is directed that the respondents reconsider the matter of
placing the members of the Association in the grade of Rs.2000 – 3200 and
Rs. 2375 – 3500 in Group ‘B’ as has been done in the case of other
Government servants like Accounts Officers (Rs.2375 – 3500) on Railway and
Stenographers Grade Rs. 2000 – 3200 in the Central Secretariat in the
same scales within a period of four months from the date of receipts of a
copy of this judgments. With these observations the O.A stands disposed
of finally. There shall be no order as to costs.
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(P.S. HABEEB MOHAMED)
MEMBER (A) |
(RAM PAL SINGH)
VICE – CHAIRMAN (J)
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