Bhisham Mirani & Ors. vs Union Of India & Ors.
2000 Latest Caselaw 173 Del

ORDER

A.K. Sikri, J.

1. Petitioners, who are 32 in numbers, are working as Assistants and Stenographers Gr. I with Lalit Kala Academy that is respondent No. 2. After the recommendations of IV Pay Commission were adopted by respondent No. 2, these petitioners were placed in the pay scale of Rs.1400-2300 w.e.f. 1.1.1986. While they were enjoying this pay scale, V Central Pay Commission gave its report regarding the revision of pay scales which was accepted by Government with necessary modifications. As per this report, the pre-revised pay scale of Rs.1400-2300 of Assistants/Stenographers Gr. I is revised to Rs. 5000-8000. This recommendation was also accepted by Lalit Kala Academy and accordingly petitioners were placed in the grade of Rs. 5000-8000 w.e.f. 1.1.1996.

2.This writ petition is filed in which grievance is made that the petitioners were not given proper pay scale while implementing the recommendation of IV Pay Commission. The petitioners claim Rs.1640-2900 w.e.f. 1.1.1986 and its corresponding revised pay scale of Rs. 5500-9000 w.e.f. 1.1.1996. It is a case of the petitioners that their counterparts were given the pay scale of Rs.1400-2600 whereas petitioners were kept in the pay scale of Rs. 1400-2300 and these petitioners were discriminated. It is further contended that in respect of those who were given the pay scale of Rs.1400-2600 the pay scale was revised to Rs.1640-2900 and therefore they also become entitled to this pay scale.

3.Mr. Sandip Sethi, learned counsel for the petitioners submitted that as per service bye-laws framed by Lalit Kala Academy the method of recruitment in this academy in case of post in Groups A, B, C & D etc. is same as the the recruitment of these employees in the Central Government. He further submitted that conditions of service contained in Fundamental Rules and connected rules and orders applicable to employees of Central Government are made applicable mutates mutants to the employees of the Academy. He referred to bye-laws 8 & 9 of the Service bye-laws of the Academy in support of this submission. He also referred to bye-laws 19 as per which scale of pay of the post under the Academy as specified in first schedule. Referring to first schedule, he submitted that the scale of pay were same as that of Government employees. Relying upon bye-law 20, he submitted that general principles and procedure underlying the provisions with regard to fixation of initial pay and drawal of pay of all kinds contained in Fundamental Rules and other connected rules of the Government are applicable to the employees of Academy mutates mutandi. Even allowances etc. as payable to Central Government are made applicable to the employees of the academy by virtue of bye-law 23. Other service benefits like medical attendants rules etc. are made applicable to employee of Academy by virtue of bye-law 25. He also referred to bye-law 45 to contend that laws relating to retirement and other benefits as applicable to Central Government are extended to the employees of academy . On the basis of aforesaid provisions, he submitted that there were deep control of the Government and in respect of all possible service conditions the employees of Lalit Kala Academy including the petitioners were governed by the rules which included rules regarding pay fixation etc. It was also submitted that as a matter of course whenever there was pay revision of the Central Government employees pursuant to the recommendations of pay commission, the same was always extended to the employees of the Academy. Therefore, according to the petitioners, when their counterparts in other sister concerns and in the Central Government were given the pay scale of Rs.1640-2900 as a result of IV Pay Commission, the petitioners were also entitled to the said pay scale w.e.f. 1.1.1986. The petitioners relied upon various orders passed by this Court wherein the pay scale of Rs.1640-2900 was given to similarly situated employees of other public sector undertakings/autonomous bodies like the Academy after the decision was taken by the Central Government to grant pay scale of Rs. 1640-2900 to its employees.

4.On the other hand, Ms. Rekha Palli, appearing for the respondents submitted that the petitioners who were working in Lalit Kala Academy, an autonomous body were not entitled to the pay scale of Rs.1640-2900 inasmuch as this pay scale which was recommended for the post of Assistants in the Central Secretariat etc. was not applicable to Assistant/Stenographers in other organisations. In support of her submission, she relied upon office memo dated 31.7.1990 issued by Department of Personnel & Training, Government of India, the relevant portion of which reads as under :-

"The undersigned is directed to say that the question regarding revision of scale of pay for post of Assistants in the Central Secretariat Etc. has been under consideration of the Government in terms of order dated 23rd May, 1989 in Da No.1530/07 by theCentral Administrative Tribunal, Principal Bench, New Delhi forsome time past. The President is now pleased to prescribe therevised scale of Rs. 1640-60-2500-EB-75-2900 for the pre-revisedscale of Rs. 425-15-500-EB-15-560-20-700-EB-25-800 for duty postsincluded in the Assistant Grade of Central Secretariat Servicewith effect from 1.1.1986. The same revised pay scale will alsobe applicable to Assistants and Stenographers in other Organisations, like Ministry of External Affairs which are not participating in the Central Secretariat Service and Central SecretariatStenographers Service but where the posts are in comparablegrades with some classification and pay scales and the method ofrecruitment through Open Competitive Examination is also thesame."

5.It was followed by office memo dated 11.12.1990 issued by Department of Expenditure in Ministry of Finance as per which pay scale of Rs.1640-2900 was given to the Assistants/Stenographers etc. in Central Secretariat etc. to remove anomaly and since there was no anomaly as such in the pay scale of Assistants/Stenographers in autonomous bodies, this office memorandum clarifies that instructions contained in O.M dated 31.7.1990 are not applicable to autonomous bodies. The relevant portion of this memorandum reads as under :-

"Since there is no anomaly as such in the pay scale of Assistants/Stenographers in Autonomous Bodies, the instructions contained in the O. M. dated 31.7.1990 of the Department of Personnel and Training are not applicable to any Autonomous Bodies. Inview of the position aforesaid. DAS of all Ministries/Departmentsof the Government of India are requested to ensure that theinstructions contained in the O.M dated 31.7.1990 of the Departmental of Personnel & Training, which is meant exclusively forAssistants/Stenographers of the CCS/CSSS, are not extended toAutonomous Organisation etc. under the Administrative Control oftheir Ministries/Departments. In case it is found that any of theAutonomous Organisations, have already issued orders extendingthe pay scale of Rs.1640-2900 to their Assistants/Stenographersinadvertently they may be asked to take corrective measures towithdraw these orders forthwith . It may, also be ensured thatthe arrears of Pay and allowances, if any, paid in this connection, to the employees may be recovered immediately."

6.Counsel also relied upon the observations of 5th Pay Commission contained in para 46.9 of its report which reads as under:-

"In the case of Assistants in the Secretariat, the position isentirely different. Assistants in the Secretariat have alwaysbeen given a special status as they have been holders of group"B" posts. They have always had a higher pay scales as comparedto assistant in Non-Secretariat organisations, even though thedifference was limited to a higher maximum. There has been asignificant element (50%) of direct recruitment with the highereducational qualification of graduation in the case of Assistantsin the Secretariat as compared to their counterparts in subordinate offices, who are promoted from the post of UCDS for whichthe prescribed minimum qualification is matric only. Assistantsin Secretariat perform more complex duties inasmuch as they areinvolved in analyzing issues which have policy implications incomparison to their counterparts in subordinate offices, wherethe nature of work is confined to routine matters relted toestablishment, personnel and general administration only. Assistant in the Secretariat also submit cases directly to the decisionmaking level of Under Secretary/Deputy Secretary under the scheme of level jumping. Taking all these factors into consideration, weare of the definite view that the pay scale of Assistant in theNon-Secretariat organisations should slightly be lower as compared to the pay scale of Assistants in the Secretariat. Assistants in subordinate office may, therefore, be placed in the payscale of Rs.1600-2600". "The Fifth Pay Commission has recommendedthe following pay structure in present terms of ministerial postsin Non-Secretariat Organisations:

Non-Secretariat CSS

--------------------------------

LDC Rs. 950-1500 Rs.950-1500 UDC Rs.1200-2040 Rs.1200-2040 Asstt. Rs.1600-2600 Rs.1640-2900 Office Supdt. Rs.1640-2900 Rs. -

Section OfficerRs.2000-3500 Rs. 2000-3500

7. In view of the aforesaid recommendations of the V Pay Commission, it was submitted that in the job profile and responsibilities of Assistants in autonomous organisation is more akin to Non-Secretariat Organisation of the Government rather than to the Assistants in Central Secretariat. The Government has since accepted these recommendations of the V Pay Commission vide Notification No. 85 R 569(E) dated 30th September, 1997. Ms. Rekha Palli learned counsel for the respondent also submitted that as for as orders of Single Benches in various cases are concerned, LPAS are filed by the respondents which are before the Division Bench. It was further submitted that in the orders passed by Single Bench, the aforesaid office memorandum and the recommendations of V Pay Commission are not taken into consideration. It was also the submission of the respondent that the present petition suffers from leaches and delays inasmuch as petitioners were claiming pay scale w.e.f. 1.1.1986 and the present petition is filed in October 1999 when pay scales have further been revised on the basis of recommendations of V Central Pay Commission.

8.I may state that it has been held by the Apex Court in number of decisions that matter regarding pay fixation and parity in the pay scales are left to the executive. Such matters are to be determined by expert bodies like the Pay Commission in the instant case. Reference can be made to the following judgments in support of this principle. Court's interference with the complex matter involving job evaluation, equation of posts and salaries etc. which require consideration of various factors is not ordinarily called for, unless there is unjust treatment by arbitrary state action or inaction. (Reference Secretary Finance Department & Ors. Vs. West Bengal Registration Service Association & Ors. , State of West Bengal & Ors., Vs. Hari Narayan Bhowal , State of West Bengal Vs. Deb Kumar Mukherjee & Ors., .

9.In view of the aforesaid respective contentions and since the matter is already pending in LPAS Nos. 92/99, 93/99, 285/97, 79/98 and 278/97 it would be appropriate that this writ petition is considered by the Division Bench alongwith aforesaid LPAs.

10. This writ petition may accordingly be listed before the Division Bench alongwith aforesaid LPAs. subject to orders of Hon'ble the Chief Justice.