Delhi High Court
Union Of India (Uoi) vs Sh. Madan Lal Gautam And Ors. on 23 August, 2002
Author: A Sikri
Bench: S Sinha, A Sikri
JUDGMENT
A.K. Sikri, J.
All these writ petitions raise common question of law. Physical Education Teachers (PETs for short) employed in various schools under Delhi Administration (now Government of National Capital Territory of Delhi) are claiming parity in pay a scales. They want to be at par with the NDS instructors (NDSIs). Different OAs filed by them before the Central Administrative Tribunal have met with conflicting results. First OA being OA No. 1526/90 was filed by Mr. Madan Lal Gautam & Ors. which was decided by the learned Tribunal vide its judgment and order dated 31st August, 1994 holding that those applicants were entitled to the parity in the pay scales and denial thereof amounted to violation of Article 14 of the Constitution of India. After this decision, various developments took place in the said OA itself resulting into filing of numerous miscellaneous applications as well as series of contempt petitions. These developments would be noted at the appropriate stage. However, what is required to be noted at this stage is that orders Contempt Petition arising out of judgment, dated 31st August, 1994 the Union of India are the subject matter of CWP No. 2390/98.
2. In the meantime, number of other OAs, namely, 1159/95, 2638/98, 213/98, 718/98 and also 169/2001 also came to be filed by similarly situated applicants as the applicants in OA No. 1526/90. In fact in these OAs, the applicants prayed that the same benefit as given to applicants vide judgment dated 31st August, 1994 in OA No. 1526/90 be extended to them also. OA No. 1159/95 Along with other OAs 1290/95 & 849/91 were taken up together and were disposed of by judgment dated 2nd May, 1996. The time the learned Tribunal refused to given any relief to the applicants in the aforesaid OAs and after noticing that 5th Pay Commission was already seized with the matter, the only direction given was that the applicants may submit representation which shall be forwarded by the respondents to the 5th Pay Commission for their consideration as expeditiously as possible. As no such benefit was extended even after 5th Pay Commission, another spate of OAs came to be field claiming this parity once again. This batch of OAs with lead OA No. 1638/98 came up for hearing and was disposed of by judgment dated 26th October, 1999. By this time as noted above, the 5th Pay Commission had also given its report on the basis of which the Government had issued necessary orders for revising the pay scales of different categories of employees including the applicants in these OAs. Taking note of the recommendations of the 4th and 5th Pay Commissions as well as various judgments of the Supreme Court, the learned Tribunal vide its judgment dated 26th October, 1999 in these OAs, dismissed the said OAs. This trend continued even thereafter dismissing the subsequent applications by various orders passed in other OAs. It is for this reason that apart from CWP No. 2390/98 which is filed by the Union of India, petitioners in all other writ petitions are the applicants who had filed various OAs.
3. For this reason, all these writ petitions were heard together and are being disposed of by this common judgment.
FACTS:
4. These cases relate to PETs working in the Directorates of Education, Government of National Capital Territory of Delhi. It is well known that in the Directorate of Education, there are categories of Trained Graduate Teachers (TGTs) and Language Teachers (LTs). Those TGTs having requisite educational qualifications get promoted as the Post Graduate Teachers (PGTs) in accordance with Rules framed for the purpose. Apart from these TGTs/LTs /PGTs other categories of staff include Head Masters (Model Schools), Vice Principal, Head Masters (Secondary Schools) and Principals. There are also miscellaneous categories of teachers like Physical Education Teachers, Music Teacher, Domestic Science Teachers, Drawings Teachers etc. The PETs, thus, fall in this category. The PETs and Physical Training Instructors were given various pay scales from time to time, position in respect whereof is as under:
Revision of Scales of pay of Teachers of Delhi and Ajmer-Morwara w.e.f. 1.1.47.
Designation Revised scale of pay Qualifications
-25-500-EB-30-590
Teachers of 200-10-250-15-325-English, Maths EB-15-400 Economics , Physics, Chemistry, Geography, Agriculture Commerce, Civics and Biology.
P .G .+Degree/Diploma in teaching or 3 years college or 7 years school teaching experience .
Teachers of 12O-8-200-EB-10-300 Commerce Civics, Biology and Agriculture
P . G . untrained or B.A.+ Degree/Diploma in teaching .
Language Teachers ( other thanEngl ish )
; 200-10-250-15-325- P .G .B .T .etc .B . A . .Shashtr i EB-15-40O-120-8-200 etc. -EA-1O-300.
Laboratory Assistant .
35-1-50.
I. i brar i ans
100-8-140-140-10-240 68-4-120-EB-5-170 55-3-85-EB-4- 125-5-13O-35-1-40-2-60
Graduate with Dip. in Lib.Matric +Cert in. Lib .Untrained Matric Non-matr ic .
Headmasters (Basic schools)
100-5-150-EB-8-190 10-250 plus spl.pay of Rs.40 or 25.
Drawing Teachers
120-8-200-EB- 10-300 100-5- 150-EB-8- 190-1 250 80-5-120-EB-8-200-10/2-220
Degree with 5 years .0 trg. Matric with 2 years trg . Matric with 2 years trg.
Physical Training Instructors
120-8-200-EB- 10-300 100-5-150-EB-190-10 250 8O-5-120-EB-8-200
B.A.+Diploma in P.T. Inter .+Cert . in P.T. Matric with Cert. in P.T. any recognised
10/2-220 68-4-120-EB-5-170 .
qualification .
Domestic Science Teachers
120-8-200-EB-10-300 100-5-150-EB-8-190-10-250 80-5-120-EB-8-200-10/2-220.
B. A. with Dip. in Dom. Sci.Inter.+3 years trg. Matric with Dip. in Home Science.
Headmaster (High School )
250-10-300-20-400-EB-500
Graduate B .T .
Headmaster (Primary school) Teacher (Primary)
Grade pay plus spl . pay Rs . 15 55-3-85-EB-4- 125-5-130 55-2-60-3-90 35-1-40-2-60.
Matric Trained or Middle School Untrained Matric Non Middle J .V. Non Matric untrained
5. The aforesaid statement shows that initially the PTIs were given four scales depending on their educational qualifications. These scales were revised and replacement scales of PTIs/PETs were given and this position continued up to 1st January, 1973 when recommendations of 3rd Central Pay Commission Report were implemented.
6. By an order dated 27th March, 1982 the Government of India upgraded the pay scale of Junior cadre Teachers from Rs. 425-640/- to Rs. 440-750/- equivalent to Senior cadre w.e.f. 5th September, 1981. These posts are analogous to the post of TGT/LT. As per the Government of India letter dated 27th March, 1982 recruitment in the miscellaneous category teachers, i.e. Drawing, Music, Domestic Science Teachers in the junior cadre was stopped and those who had completed three years in the service in the junior scale were given the pay scales of Rs. 440-750/-. Accordingly recruitment rules were amended vide Notification dated 23rd February, 1984 with the nomenclature of the post of Physical Education Teacher in the pay scale of Rs. 440-750/- which scale is equivalent to the scale given to TGTs/LTs in the subjects. The PETs were further identified for promotion to the post of PGT (Physical Education) in the pay scale of Rs. 550-900/-.
7. From 1st January, 1984 the 4th Pay Commission granted 3 tier pay scale to the Teachers; Entry scale, Senior scale and then selection scale. TGTs in the subjects were placed in the scale of Rs. 1440-2600/-, Senior scale was Rs. 1640-2900/- and selection scale was Rs. 2000-3500/-. Similarly PGTs were given scale of Rs. 1640-2900/-, Rs. 2000-3500/- and Rs. 2200-4000/-. Implementing the recommendations of the 4th Pay Commission, it was specifically mentioned that miscellaneous categories of teachers will be entitled to pay scale analogous to the post. Since the posts of PETs were analogous to TGTs, PETs were placed in the pay scale of Rs. 1400-2600/- (Entry scale), Rs. 1640-2900/- (Senior scale) and Rs. 2000-3500/- (Selection scale) w.e.f. 1st January, 1986. There is no dispute on this account. These PETs had no grievance on giving them the pay scales of the analogous post in the aforesaid manner.
8. However, the problem arose because of inclusion of NDSIs in Government of India, National Fitness Corps Scheme when a decision was taken to abolish the scheme and the States and Union Territories were directed to absorb them in the existing scale.
9. NDSIs working with the Government of India, Ministry of Human Resources and Development, Department of Youth Affairs and Sports were in the four grades. Their pay scales of different categories of grades were as follows:
NDSI Senior Grade I scale prior to 1.1.1967-Rs. 210-320/-
S. No.
Old Pay scale ( Rs .)
Revised pay scale (Rs . )
Date effective from
\ .
210-320
250-470
01 .01 .1967
2 .
25O-470
270-550
21 .12.1967
3 .
275-550
30O-600
27 .05.1970
4 .
300-600
350-70O
27.05.1970
5 .
350-700
55O-900
01 .01 .1973
NDSI Senior Grade II scale prior to 1.1.1967-Rs. 150-240/-
S . No .
old Pay scale (Rs.)
Revised Pay scale ( Rs . )
Date effectivefrom
1 .
150-240
17O-380
01 .01 .1967
2 .
170-380
190-425
21 .12.1967
3 .
190-425
220-500
27.05.1970
4 .
220-500
250-550
27 .05.1970
5.
250-550
440-750
01 .01 .1973
NDSI Junior Grade I scale prior to 1.1.1967-Rs. 110-200/-
S.No.
Old Pay scale (Rs.)
Revised Pay scale (Rs . )
Date effective from
1 .
118-200
118-225
01 .01 .1967
2.
118-225
118-270
21.12.1967
3.
118-270
125-330
27.05.1970
4 .
125-330
165-350
27 .05.1970
5.
165-350
33O-560
01.01.1973
NDSI Junior Grade II scale prior to 1.1. 1967-Rs.95-155/-
S. No. Old Pay scale ( Rs . )
Revised Pay scale ( Rs.)
Date effective from
1.
95-155
110-200
01 .03.1971
2.
110-200
165-350
01 .03.1971
3.
165-350
33O-560
01.01.1973
10. There were in all 363 NDSIs working in different grades who were to be absorbed by the Education Department, Government of NCT of Delhi in the year 1972 and 1976. The NDSIs were in three grades 7 senior NDSIs Grade I were absorbed as Senior NDSIs Grade I in the scale of Rs. 440-750/- w.e.f. 1st November, 1976. 36 Senior NDSIs Grade II and rest junior NDSI grade I were absorbed in the pay scale of Rs. 220-430/- as revised to Rs. 425-640/- w.e.f 1st January, 1973. Junior NDSIs Grade I and Senior NDSIs Grade II were absorbed as junior PETs in the scale of Rs. 425-640/- (revised) w.e.f. 1st January, 1973. 339 NDSIs were absorbed w.e.f 1st November, 1972 in the scale of Rs. 220-430/-. After junior PETs and Senior PETs' grades were upgraded w.e.f. 5th September, 1981. Senior NDSIs grade II and junior NDSIs grade I who were appointed as junior PETs also automatically came in the scale of Rs. 440-750/- w.e.f. 5th September, 1981. Senior NDSIs Grade I in any case were absorbed as Senior NDSIs grade I in the scale of Rs. 440-750/-. However, their pay w.e.f 1st November 1976 got refixed in the scale of Rs. 550-900/- vide Government of India's order dated 30th January, 1989 as their pay prior to absorption was fixed in the pay scale of Rs. 550-900/- vide Government of India order dated 4th August, 1988. Their pay scale was protected and was personal to them.
11. The Government of India revised the pay scale of NDSIs with retrospective effect from 1st January, 1967 to 1st January, 1973 with a stipulation that benefit of revised scales will be available tilled ate of their absorption in the State/Union territory services. From the date of absorption their pay was to be fixed in the respective posts where they were absorbed by the state/Union Territory. Few of the senior NDSIs Grade I and Grade II faced anomaly in pay fixation as because of retrospective revision of pay scale before their absorption and on absorption their pay was being reduced. They were 7 senior NDSIs Grade I and around 36 Sr. NDSIs Sr. Grade II. Junior NDSIs Grade I in any case were getting scale higher than the revised pay scale when they were absorbed. In order to remove this anomaly with respect to these 43 NDSIs, the Government of India issued clarifications that pay of the senior NDSIs, Gr. I and Senior NDSIs Gr. II be fixed in the pay scales in which they were working before their absorption and with further stipulation that this scale will be personal to them. As result the 7 senior NDSIs in grade I got the scale of Rs. 550-900/- personal to them w.e.f. 1st November, 1976 and 36 senior NDSIs Gr. II were given scale of Rs. 250-550/- w.e.f. 1st November, 1972 revised to Rs. 440-750/- w.e.f. 1st January, 1973.
12. The aforesaid factual events would demonstrate that some senior NDSIs got pay scale, although personal to the, which was higher than the pay scale of PETs. Such higher pay scale came to be given to junior and senior NDSIs was to remove the anomaly in their pay fixation because of retrospective revision of pay scale before their absorption. This, however, became a cause of anguish so far as the PETs working in Government of National Capital Territory of Delhi were concerned as it was impalatable to them to accept the position where their pay scale was lesser than that those of NDSIs.
13. OA No. 1526/90 by Madan Lal Gautam & Ors. Certain PETs, namely, Sh. Madan lal Gautam and 15 others approached the learned Tribunal by filing OA No. 1526/90. In this OA, these applicants sought for quashing of various orders as per which pay scales of NDSIs only were revised retrospectively w.e..f 1st January, 1967. They also claimed parity with NDSIs and therefore, prayed for directions to the effect that the respondents revise their scales as well at par with those of NDSIs. Thus, the PETs accordingly demanded the scales which were given to senior NDSIs gr. II i.e. Rs. 254-550/- from 1st November, 1972 and not the scale of Rs. 550-900/- which was given to senior NDSIs Gr. I w.e.f. 1st November, 1976 vide Government of India letter dated 30th January, 1989. The OA was filed by 15 junior PETs and 2 senior PETs. Junior PETs in any case, were in the scale of Rs. 440-750/- w.e.f. 5th September, 1981.
14. When this OA came up for hearing on 31st August, 1994 and the matter called out, nobody appeared on behalf of the respondents, although the learned Tribunal waited for a considerable length of time as can be seen rom the order of the learned Tribunal dated 31st August, 1994. On the other hand, learned counsel appearing for these applicants produced a copy of letter dated 11th January, 1994 issued by the Ministry of Human Resources Development, Department of Education, Government of India addressed to the Director of Eduction (Delhi Administration). The relevant extracts of this letter, as narrated in Tribunal's order dated 31st August, 1994, read as under:
"The PETs are better qualified than NDS Instructors in as much as the professional qualifications of PETs is an essential qualification where in the case of NDS Instructors, the professional qualification is not essential. The PETs were thus enjoying higher pay scales even NDS Instructors absorbed in schools under Delhi Administration are engaged in the same job as the PETs recruited directly by them. Thus, it is felt that the denial of parity in the pay scales between different group of people engaged in the same job would amount to violation of Article 14 of the Constitution of India.
15. In view of the aforesaid stand purported to have been taken by the Government of India itself, the learned Tribunal felt that no adjudication of the matter was needed at its level and it disposed of the OA in the following terms:
"In the light of contents of the letter dated 11.1.1994 referred to above, this application is disposed of with a direction to the respondents to take further action directed in accordance with the contents of that letter, within two months from the date of receipt of a copy of this judgment. Ms. Ashoka Jain, counsel for the respondents appeared later on.
16. Thus, this order dated 31st August, 1994 was nothing more than the quoting the relevant extract of letter dated 11th January, 1994 and giving the aforesaid directions passed on the contents of the aforesaid letter.
17. After the aforesaid directions of the learned Tribunal, the Delhi Government passed order dated 2nd March, 1995 giving benefit of the higher pay scale, as was given to senior NDSIs, to these PETs and PTIs. It may be mentioned that the Delhi Government now maintains that his order was without any indepth study of the letter dated 11th January, 1994 and the higher pay scales were granted in a routine manner without obtaining the approval of the Government of India, which is the nodal authority to decide the pay scales of Teachers working in the Directorate of Education. According to it, as per the directions issued by the learned Tribunal on 31st August 1994 what was required to be done by the Delhi Government was to place the case before the Government of India, Ministry of Human Resources Development, Department of Education for their approval after bringing the full facts to their notice which was not done. This contention shall be dealt with at the appropriate stage.
18. To complete the narration of facts, it may be mentioned that when the Government of India case t know of the aforesaid order dated 2nd March, 1995 passed by the Delhi Government, vide its order dated 18th January, 1996 it directed that order dated 2nd March, 1995 which was factually incorrect having far reaching consequence be kept in abeyance. This direction provoked the applicants in OA, who obviously felt aggrieved by order dated 18th January, 1996, to file contempt petition. Miscellaneous application in this contempt petition was also filed. It may be mentioned at this stage that on 5th June, 1996, the Delhi Government filed review application seeking review of order dated 31st August, 1994 passed by the learned Tribunal in OA No. 1526/90. Similar review application was also filed by the Government of India on 7th February, 1997. While these review applications were pending, in the contempt petitions 43 and 44/96 filed by the applicants in OA No. 1526/90, the learned Tribunal vide its order dated 10th March, 1997 directed the Government to comply with the order dated 31st August, 1994 and pay revised pay scales with arrears to PETs with interest at the rate of 12 per cent per annum. Thereafter, vide order dated 19th August, 1997 review applications filed by the Delhi Government as well as by the Union of India were also dismissed.
19. The Union of India has filed the present CWP No. 2390/98 challenging the order dated 19th August, 1997 passed by the learned Tribunal dismissing its review application. As far as the Delhi Government is concerned, it has not filed any independent writ petition. However, it has supported the case of Union of India in CWP No. 2390/98. It may also be mentioned that in the meantime the Delhi Government passed orders dated 1st October, 1997, 9th October, 1997 and 24th December, 1997 giving revised pay scales and arrears to PETs at par with NDSIs, i.e., giving those corresponding upgraded/revised pay scales as recommended by the 5th Pay Commission in respect of NDSIs.
20. Certain other applicants filed OA Nos. 1159/95, 1290/95 and 859/95 seeking implementation of order dated 2nd March, 1995 and claimed parity on the basis of this order on the ground that the posts of PETs were analogous to TGTs in the subject. As already noticed above,these OAs were disposed of vide order dated 2nd May, 1996 without granting any relief to the applicants and directing the applicants to make representation with further directions to the government authorities to send the same to the 5th Pay Commission.
21. Some PETs started drawing pay in the scale as pet letter dated 2nd March, 1995. The Government of National Capital Territory of Delhi allegedly found that these PETs has started doing so of their own without any specific orders from the competent authority and it was not permissible even as per letter dated 2nd March, 1995 which letter itself ends with the pay Scale up to 1st January, 1973. According to the Delhi Government these PETs started drawing pay in the scale of Rs. 550-900/- w.e.f. 5th September, 1981 on the ground that the junior PETs were granted the upgraded scale of senior PETs. They got further revised scales by the 4th Pay Commission w.e.f. 1st January, 1986 as well as 5th Pay Commission on 1st January, 1996 in the scale of Rs. 1640-2900/- and Rs. 6500-10,500/- which scales are of PGT category teachers. There are abut more than 1500 PETs and around 30 to 50 had wrongly drawn higher pay scales. The Government of Delhi, when came to know about this illegal drawl of higher scale without any order of competent authority, issued a letter on 20th July, 1998 wherein it was specifically clarified that pay scales of PETs shall be in the scale of Rs. 5500-9000/- w.e.f. 1st January, 1996 and that the fixation of their pay of Rs. 6500-10,500/- was wrong. 8 OAs were filed before the learned Tribunal challenging the order dated 20th July, 1998 and the order was stayed.
22. Ultimately the learned Tribunal, vide its judgment dated 26th October, 1999, came to the conclusion that PETs are entitled to the pay scale of Rs. 1400-2600/- w.e.f. 1st January, 1986 to 31st December, 1995 and Rs. 5500-9000/- w.e.f. 1st January, 1996 and only senior NDSIs Gr. I who were agreed in principle were given replacement scale of Rs. 1640-2900/- w.e.f. 1st January, 1986 to 31st December, 1995 and Rs. 6500-10,500/- w.e.f 1st January, 1996. The scales in any case were personal to them and they had retired by now. The learned Tribunal has also directed that the recovery be made from those who have drawn higher pay scales by way of wrong fixation.
23. OAs 213 and 718/98 were filed by the TGTs and PGTs subject individually and through their association claiming that since PETs are drawing pay in the higher scale the TGTs subject should also get the same scale. The prayer of PGTs was that since the PETs who are analogous to the TGTs are drawing the pay scale which scale is PGTs, their scale should be upgraded. Vide judgment dated 26th October, 1999 these OAs were disposed of. Another OA No. 169/2001 was filed by a PET challenging the order dated 8th November, 2000 by which the directions were issued to draw pay only in the scale of Rs. 440-750/- w.e.f. 30th/31st July, 1985 the date of his appointment which appointment itself was in the pay scale of Rs. 440-750/- w.e.f. 30th/31st July, 1985. This OA was dismissed vide judgment dated 20th March, 2001 with further directions to rectify the mistake if any other person is still drawing pay in the higher scale.
SUMMATION OF FACTS AND ISSUE INVOLVED:
24. The aforesaid events disclose that the learned Tribunal chartered two different courses. The first path starts from order dated 31st August, 1994 on the basis of which the Delhi Government gave revised pay scales to PETs at par with the NDSIs vide letter dated 2nd March, 1995 and leads to passing of order dated 10th March, 1997 in the contempt petitions directing the Government to pay revised pay scales with arrears and interest. It culminates with order dated 19th August, 1997 dismissing the review applications filed by the Delhi Government and the Central Government against which writ petition is preferred by the Union of India. Second path adopted by the learned Tribunal backtracks from the first course of action. In a series of judgments, rendered by the learned Tribunal in all subsequent OAs filed, the view taken by the learned Tribunal is that these PETs are not entitled to the pay scales given to the NDSIs which were personal to the NDSIs and the pay scales which were originally given to these PETs were rightly given by the Government on the basis of recommendations of the Pay Commissions.
25. These PETs want us to hold that the initial course of action adopted by the learned Tribunal is right in law and it was not permissible for the official respondents to go back from the position initially taken in its letter dated 11th January, 1994 and it was also not permissible to withdraw its order dated 2nd March, 1995 rightly passed after decision dated 31st August, 1994 by the learned Tribunal. In fact, as per these PETs the Delhi Government atleast has accepted the orders of the learned Tribunal by issuing various Office Orders including 1st October, 1997, 9th December, 1997 and 24th December, 1997 wherein these PETs have been given the revised pay scales. According to these PETs in view of these orders which are fait accompli it is not permissible for the Government to take a different view. These PETs have also challenged the validity of the subsequent orders passed by the learned Tribunal in various OAs dismissing the said OAs as contrary to law.
26. On the other hand, the stand of the official respondents is that the first order dated 31st August, 1994 passed by the learned Tribunal was without adjudicating upon the merits of the case and solely based on letter dated 11th January, 1994 of the Government of India which was also not considered in its proper perspective. As a sequel orders dated 31st August, 1994 were either passed erroneously and without jurisdiction by the Delhi Government inasmuch as the Central Government was not consulted and approval taken or they were passed on the threat of contempt action by the learned Tribunal and therefore, could not be relied upon by the PETs. It was their submission that the matter was not considered in its right perspective. Only in subsequent OAs where detailed judgments were rendered where the learned Tribunal considered the entire gamut of the dispute and applying legal principles rightly held that the PETs were not entitled to the pay scales which were given as personal pay to senior NDSIs.
27. In view of the above, it would be necessary to first deal with the legal issue on its merits and to ascertain as to whether these PETs are, in law, entitled to the pay scales at par with senior NDSIs. Afterall in view of divergent views of the learned Tribunal expressed in two sets of judgments, Tribunal itself, the first and foremost task of this court would be to resolve the conflict by examining as to which opinion of the learned Tribunal is correct in law. Moreover, entitlement of the PETs to a particular pay scale has to have legal basis. Once both these judgments of the learned Tribunal are under challenge before us (of course in the first case the writ is filed against order passed in review petition), we have to decide as to which view is correct in law. Therefore, we proceed to determine this aspect of the matter.
THE DECISION:
28. After examining the issue involved and after considering arguments of various counsel appearing on either side and perusing the material on record, we are of the opinion that these PETs are not entitled to the pay scales as claimed by them at par with the pay scales given to senior NDSIs. However, we proceed to give reasons for taking this decision.
THE REASONS:
29. We have already noted, while scanning the facts of these cases, the circumstances under which the NDSIs came to be absorbed in the Directorate of Education, Government of Delhi. We have also noticed the circumstances under which these NDSIs, senior as well as juniors, were given the higher pay scales in order to remove the anomaly and these pay scales were treated as personal to them.
30. On the abolition of Scheme, 363 NDSIs were absorbed in the Directorate of Education. There were two categories of these NDSIs, namely, senior and junior NDSIs. There were two grades in each of these category, i.e. Grade I and Grade II. 7 employees belonged to Grade I senior NDSIs and 33 were in the category of Grade II senior NDSIs. Out of these 33, 12 were taken in Grade II and 21 were absorbed as junior PETs. Those who were junior NDSIs were absorbed as junior PETs and taken as fresh entrants in that Grade. We have already extracted above the pay scales which were enjoyed by the senior and junior NDSIs in both the Grades.
31. It is also a matter of record that when the Government of India took decision to abolish the said Scheme, it was decided to absorb these NDSIs working in various States/Union Territories to the respective States/Administrations. Elaborate instructions to this effect were issued by the Central Government on 4th April, 1972. As per para 2 thereof the Central Government had also agreed to release to the State Government/Union Territories the entire cost of pay and allowances of these persons till the end of 4th plan period. This para is to the following effect:
"It may be recalled that the Union Ministry of Education had earlier agreed to reimburse to the State Govt. the entire cost of pay and allowances of these persons till the end of the Fourth Plan period. It has since been decided that the Govt. of India will bear the liability on account of the pay and allowances of the NDS Instructors and supervisory staff in full for a period of five years or till the next Finance Commission makes its award. This Ministry will request the Finance Commission to take into account this liability in assessing the financial requirements of the State Govt. for future."
32. By another letter dated 18th April, 1972 this staff was placed at the disposal of the respective State Governments/Union Territories. However, since they were enjoying their own pay scales and the pay was fixed therein, on absorption, it was also decided to protect their pay which was to be treated as personal to the incumbents. This decision is contained in the Government's letter dated 2nd April, 1973 and the relevant portion thereof reads as under:
"...It has, therefore, been suggested that where, as a result of absorption in the state cadre on the terms indicated in the previous paragraph, the pay and allowances of an instructor have to be protected, he should be allowed the option of electing to remain in his present central pay scale. In the event of such option, the state Government will absorb him against a newly created post in the State Cadre on a scale of pay identical with his present Central Government pay scale, which will be treated as personal to him and subject to the condition that any future revision of an identical cental pay scale will have no effect on the personal sale created for the instructor. It has been urged that this way, such instructors will at least earn some increments during their further service.
The above suggestion have been considered by the Government of India in consultation with the Ministry of Finance and it has been decided to accept the suggestion. In order words an NDS Instructor who if absorbed in the existing state pay scale appropriate to his qualifications will not be able to
earn increments in that scale, and whose Central Govt. Pay and allowances at the time of absorption have to be protected in terms of para 1(a) above, may elect to retain his present Central Pay scale. In the later case the State Government will create a special post in the State cadre on the scale of pay identical with his present Central Pay scale, but any future revision of a central pay scale, identical with this scale will have no effect on this personal scale. The State Government are, however, competent to modify this personal scale in the event of a general revision of the State pay scales for the cadre of Physical Education teachers. The increased financial commitments will also be borne by the Central Government as indicated in para 1 (d) above."
33. In fact, in order to absorb these NDSIs in respective State Government/Union Territories, the order dated 1st June, 1976 was issued for creation of the additional posts and this order itself, while creating these posts, mentioned the pay scales also which were to be given, as is clear from the following portion of letter dated 1st July, 1976:
(1) National Discipline Scheme Instructors Senior Grade
Scale Rs. 210-10-290-320
(2) National Discipline Scheme Instructors
Rs. 150-5-175-6-205 E8-7-240
(3) National Discipline Scheme Instructors Junior Grade
RS.110-4-150-EB-4 -170-7-180-EB-200
34. What happened thereafter, as already noticed, the Government of India had revised the pay scales of these NDSIs with retrospective effect, i.e., from 1st January, 1967 to 1st January, 1973 by orders dated 19th May, 1986 and 4th August, 1988 with a stipulation that benefit of revised pay scales will be available in the States/Union Territories services. This order dated 19th May, 1986 was in fact issued giving this revision, in compliance with the judgment dated 11th April, 1985 of Karnataka High Court in CWP No. 5450/80 and judgment dated 20th December, 1985 of the Supreme Court in CWP No. 12335/85. From the date of absorption their pay was to be fixed in respective States where they were absorbed by the States/Union Territories. This resulted in anomaly being faced by few senior NDSIs Grades I and II as because of retrospective revision of pay scales before their absorption and on their absorption their pay stood revised. It was, in these circumstances and to remove this anomaly that 7 senior NDSIs in Grade I got the scale of Rs. 550-900/- as personal to them w.e.f. 1st November, 1976. Grade II NDSIs were given pay scales of Rs. 250-550/- w.e.f. 1st November, 1972. Thus, what is to be appreciated is that the retrospective revision of pay scales of 7 senior NDSIs Gr. I was in peculiar circumstances that too while implementing the judgments of the Karnataka High Court and the Supreme Court. Further, these pay scales were protected as personal to them on their absorption in Delhi Administration to remove anomaly. Giving of revised/higher pay scales to few NDSIs in the aforesaid peculiar circumstances by specifically making the same as personal to them cannot be the basis of claim by the PETs for grant of same pay scale. As already mentioned above, while implementing the recommendations of the 4th Pay Commission, these PETs were given the pay scales w.e.f. 1st January, 1986 and there was no dispute on this account. Thus, these PETs were entitled to particular pay scales, namely, Rs. 1400-2600/- (entry scale) Rs. 1640-2900/- (senior scale) and Rs. 2000-3500/- (selection scale). This was duly accepted by them without demur. The recommendations of the 4th Pay Commission were properly applied in the case of PETs and they did not and could not make any quarrel about it. These PETs, however, subsequently demanded the higher pay scale for which some of these PETs filed OA No. 1526/90 only on the ground that some senior scale NDSIs Grade I were given higher pay scale and they claim parity with those persons. Such a parity in the facts and circumstances of this case cannot be claimed, when some NDSIs, on their absorption, are enjoying the higher pay scales as personal to them only because of fortuitous circumstances.
35. In so far as order dated 31st August, 1994 in OA No. 1526/90 is concerned, it does nothing except reproducing the extract from letter dated 11th January, 1994 and passing the directions in terms thereof. We shall revert to letter dated 11th January, 1994 at an appropriate stage. What needs to be emphasised here is that the order dated 31st August, 1994 did not adjudicate upon the dispute. In subsequent judgment dated 2nd May, 1996 passed in OA No. 1159/95 the learned Tribunal, however, did not grant this benefit even when earlier order dated 31st August, 1994 in OA No. 1526/90 was referred to and pressed into service. It may be interesting to note that the members of the Bench who passed the order dated 31st August, 1994 were the same who decided the OA 1159/95 and connected OAs vide order dated 2nd May, 1996. While relegating the matter to the 5th Pay Commission, the learned Tribunal referred the discussion to the principle of equal pay for equal pay in the following manner:
"We have already referred to the judgment of the Supreme Court in State of West Bengal and Ors. v. Hari Narayan Bhowal and Ors. [(1994) 27 ATC 524] in OA 849/91 in which the court held that the principle of "equal pay of equal work" can be enforced "only after the persons claiming satisfy that court that not only the nature of work is identical but in all other respects they belong to the same class and there is no apparent reason to treat equals as unequals". It was further held "that the court should not take upon itself the responsibility of fixation of scales of pay, especially when the different scales of pay have been fixed by the Pay Commission or Pay Revision Committees, having persons as members who can be held to be experts in the field and after examining all the relevant material."
36. Thereafter the issue came to be examined threadbare by the learned Tribunal in subsequent judgment dated 26th October, 1999 in OA 1638/98 and connected OAs after tracing out the history of the grant of pay scale to the two categories, namely, PETs and NDSIs. Elaborately discussing the circumstances under which some of the NDSIs came to get higher pay scales, the learned Tribunal came to the conclusion that the demand of PETs claiming parity with NDSIs was uncalled for. The relevant discussion runs as follows:
"Para 19: The contention of the learned counsel for the applicants, however, is that as scales of pay of PETs having been revised at par with the scales of NDSIs, all the PET are entitled for the scale of pay of Rs. 550-900/- and to the corresponding scales shown in the IV and V Pay Commissions. The contention appears to be fallacious. In the OA filed by some of the junior PETs what they have sought for was a direction for payment of the pay scales at par with NDSIs as per the orders dated 4th August, 1988 and 20th June, 1989. Accordingly the Tribunal directing the respondents to pay the pay scales at part with the NDSIs. In compliance thereof and in accordance with the order dated 4th August, 1988 the applicants scales were revised. Thereafter in view of the Pay Commission's recommendations and the Government of India's orders dated 20th June, 1989 they have been equated with NDSIs Grade II and the TGTs and they have been placed in the pay scale of Rs. 1400-2300 that of TGTs. Only Senior NDSIs Grade I have been given the higher scales of PGTs. Thus all the PETs were already given the benefit of the revised scales Along with NDSI II w.e.f. 1.1.86. Thus the claims made by the applicants in the OA were complied with. It should be kept in mind that there were no directions in the OA to pay the PETs at par with Senior NDSIs I. Hence, we are of the view that there is no basis of the claim that the PETs are entitled to the pay scale of Rs. 550-900, which is the scale of Senior NDSIs.
Para 20: The applicants have forgotten the fact that the Govt. of NCT Delhi having implemented the pay scale as per the orders passed by the Government of India accepting the recommendations of the IVth and Vth Pay Commissions by which pay scales of different categories of Teachers including PETs were revised in its order dated 7.8.98. The applicants have not challenged these orders whereby respondents had implemented the pay scales recommended by the IVth Pay Commission, way back in 1987 and several Teachers were placed in the said scales. We, are, therefore, of the view that the applicants claim for higher scales of pay is neither warranted by the order of the Tribunal nor sanctioned by any of the recommendations of the Pay Commissions. The NDSIs are Central Govt. servants and as clarified in the counter-affidavit of R-1 to R-4 only 17 of the Senior NDSIs were absorbed into the cadre of PETs Grade I. Even after their absorption into the cadre of PETs Grade I they were authorised to be paid the higher salary which was revised i.e. at Rs. 550-900. one of the conditions at the time of their absorption which is evidence from the letter dated 12.4.73, of the Ministry of Education, Government of India, was that if as a result of any revision of pay, they get higher emoluments they should be allowed the same or the pay drawn under the Central Government at the time of absorption. Their pay was, therefore, protected. The higher pay scale was also treated as personal to them. Hence, the PETs cannot be equated with a few senior NDSIs Grade I who were given the equivalent scale of PGTs."
37. We also find that in so far as PETs are concerned, they have always been equated with TGTs. This is the position right from 1947. Whenever there has been a revision of pay scale of TGTs, these PETs have been getting their pay in the same revised pay scale. It is not necessary to state in detail the entire history of the revision of such pay scales right from 1947 although Mrs. Avnish Ahlawat, learned counsel appearing for the Delhi Government took pains to point out each such revision in order to demonstrate that these PETs have always been equated with TGTs in the Delhi Administration and the learned counsel appearing for the PETs could not dispute this position. It is, however, necessary to state that w.e.f. 5th September, 1971 even selection grade was introduced for these TGTs/PGTs and corresponding benefit it was also extended to the PETs. Further, w.e.f. 5th September, 1981 junior PETs were upgraded as PETs and Recruitment Rules were also amended accordingly w.e.f. 23rd February, 1984. As per the Rules also the pay scale of PETs was prescribed as Rs. 440-750/- (which was the pay scale after implementation of 3rd Pay Commission) on the recommendations of 4th Pay Commission. Therefore, the corresponding pay scale given to these PETs was Rs. 1440-2600/-. It is, thus, clear that their pay was fixed in accordance with the statutory Recruitment Rules. They also got senior scale after 12 years and selection grade after another 12 years.
38. Merely because 7 senior NDSIs are given higher pay scale in unique circumstances and as person to them cannot be a ground to shake and disturb the equilibrium in the entire cadre of PETs which may even have snowballing effect. If the PETs are granted higher pay scale than what is admissible to them as per Recruitment Rules and when the PETs are equivalent to TGTs, the matter may not stop here. There can be similar demand of TGTs. And thereby PGTs who may demand still higher pay scale once the TGTs are given the pay scale which is at present enjoyed by the PGTs.
39. Learned counsel appearing on behalf of these PETs strenuously argued that it was a false stand taken by the official respondents to the effect that the higher scale was given to NDSIs for according pay protection, when in fact the NDSIs were getting lesser pay scale than the PETs before their absorption in the schools which was acknowledged even in letter dated 11th January, 1994 by the government. This argument, however, ignores a crucial fact, namely, retrospective revision of the scales of NDSIs while implementing the judgments of Karnataka High Court and the Supreme Court already referred to above. On revising the pay scales retrospectively w.e.f. 1st January, 1967, the pay scale of these NDSIs did not remain less than PETs as alleged. Further, as already mentioned above, since their pay was to be protected, on their absorption in the schools once it was found that fixation of their pay scales would result in lesser pay, their pay was protected by giving them higher pay scale as personal to them. In any case, it cannot be denied that the obvious reason for giving these NDSIs higher pay scale was to remove the anomaly and protect their pay by treating it as personal to them in compliance with the judgment of the Apex Court.
40. Having held that, the PETs are not entitled to the pay scale as given to senior NDSIs Grade I, namely, Rs. 1640-2900/- (4th Pay Commission) or Rs. 6500-10,500/- (by 5th Pay Commission) and the scales given to them pursuant to implementation of the 4th Pay Commission, namely, Rs. 1640-2900/- were rightly given, we deal with letter dated 11th January, 1994. No doubt this letter indicates as if after grant of higher pay scale to NDSIs, is discriminatory qua the PETs. However, the matter was thereafter considered by the Government itself in great length and it was found that the stand taken in letter dated 11th January, 1994 was not correct. It was for this reason that the order dated 2nd March, 1995 was issued by the Government pursuant to directions dated 31st August, 1994 in OA No. 1526/90 was kept in abeyance vide letter dated 18th January, 1996. This decision and the subsequent decision to cancel the grant of higher pay scale to some of the PETs were subject matter of controversy in the later cases filed before the learned Tribunal and as already indicated above, the learned Tribunal has upheld the stand of the Government. We have also found ourselves in agreement with such decisions of the learned Tribunal. Therefore, the reliance on letter dated 11th January, 1994 of the Central Government by the PETs may not be of any consequence Once we have found the legal position is other way around.
41. At this stage, we may also mention that the learned Tribunal in its detailed judgment dated 26th October, 1999 in OA 1368/98 and connected OAs even examined the effect of its earlier order dated 31st August, 1994 in OA No. 1526/90 and came to the conclusion that even if the applicants in said OA were entitled for the higher pay scale because of that order which had become final, the same benefit need not be extended to all PETs who were not parties in the said OA once it was found that no case for such an entitlement was made. This is what the learned Tribunal observed in this respect, relying upon the judgment of the Supreme Court:
"We are also of the view that in pursuance of the order of the Tribunal Dated 31.8.94 the applicants therein may be entitled for the higher scales of pay but the same benefit need not be extended to all the PETs as they are not parties to it. If we examine the nature of the said order,it was not a considered order. None of the parties were heard on merits of the case. No reasons were assigned in the order why the applicants there in were entitled to the scales at par with senior NDSIs-I. The crucial fact that the scales fixed by the Pay Commissions and accepted by the Government of India and NCT Delhi and also implemented in cases of all the PETs were also not brought to the attention of the Tribunal. The law on the subject is well settled and by a catena of decisions of the Supreme Court. In Union of India and Anr. v. P.V. Hariharan, , the Supreme Court dealt with the question of parity of pay scales of Tool Room Assistants in the Integrated Fisheries Project with the pay scale of Tool Assistants in Central Institute of Fisheries, Nautical and Engineering Training Department. The Tool Room Assistants in the Integrated Fisheries Project were placed in the scale of Rs. 800-1150 on the recommendations of the IVth Pay Commission. They sought their pay scale in parity with the higher pay scale of other group of Tool Room Assistants in Central Institute of Fisheries. The Hon'ble Supreme Court setting aside the Tribunal's order where the Tribunal directed to grant higher pay scale to other group of Tool Room Assistants held thus:-
"Over the past few weeks, we have come across several matters decided by Administrative Tribunals on the question of pay scales. We have noticed that quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of 'equal pay for equal work' is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders passed by Single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too."
22. The ratio in the above case squarely applies to the facts of the case on hand. The pay scales as recommended by the IVth and Vth Pay Commission and accepted by the Central Government as well as by the NCT Delhi cannot be ignored and the higher pay scales given to the PETs on the basis of an order of the Tribunal, to which neither the applicants nor respondent 5 were a party, without considering the merits of the case and without considering various issues involved in the fixation of pay scales. The contention that as the pay scales are now sought to be altered by reducing the same from Rs. 6500-10500 to 5500-9000, it should have been done only after issuing notice is wholly unsustainable. What is sought to be done by the respondent is only to correct the wrong pay scales fixed and place them in accordance with the scales already fixed".
42. The learned Tribunal also after examining the matter at length in the aforesaid judgment, in no uncertain terms held that the matter was not examined on earlier occasion when order dated 31st August, 1994 was passed in OA No. 1526/90 and thus confined the benefit to the applicants therein on the presumption that the order inter se parties in the said OA had become final. However, it is not so. The Union of India has filed CWP No. 2390/98. This writ petition has been filed challenging order dated 19th August, 1997 whereby the review petitions of the Delhi Government and the Central Government were dismissed which sought for review order dated 31st August, 1994 passed in OA No. 1526/90. As we have come to the conclusion that on the basis of communication dated 11th January, 1994 the PETs could not be held entitled to higher pay scale, the learned Tribunal could have reviewed its order more particularly in view of its other order dated 2nd May, 1996 passed in OA No. 1159/95 wherein the same Bench observed that principle of equal pay for equal work may not have application and referred to the 5th Pay Commission for consideration. Without discussing the matter in further detail, it would be sufficient to state that in order to do complete justice in the matter and when we have found that the view of the learned Tribunal in subsequent judgments holding that the PETs are not entitled to pay at par with NDSIs, it would be appropriate to set aside the order dated 31st August, 1994 as well as by allowing the review application of the Union of India which we hereby do.
43. The result of the aforesaid discussion would be that all the writ petitions filed by the PETs are without any merit and are accordingly dismissed. CWP No. 2390/98 filed by the Union of India is hereby allowed.
44. The matter does not rest here. We have to deal with CWP No. 5714/99 wherein orders passed in contempt petition filed by the applicants in OA No. 1526/90. We may notice here that after order dated 2nd March, 1995 passed by the Delhi Government was kept in abeyance by the Central Government and CPs 43 and 44/96 were filed, the learned Tribunal passed an order dated 10th March, 1997. In this order the learned Tribunal noted that notwithstanding the fact that the Union of India had passed the order dated 18th January, 1996 directing the order dated 2nd March, 1995 to be kept in abeyance, the Delhi Government had started paying to the applicants in accordance with revised Rules and gave the directions for payment of interest by observing as under:
"With regard to the payment of arrears, the learned counsel for the respondents says that because of the delay occurring mainly due to inter departmental procedures with the Union of India, the payment of arrears could be finally settled after the Review application which is pending, is finally disposed of. We are of the view that the compliance of our orders cannot be put of for future date for whatever reasons including the pendency of other proceedings unless there is a stay order against compliance from a Co-ordinate Bench or from Supreme Court. Since there is no such Court order against compliance of our order, the payment of arrears are to be made to the concerned applicants in accordance with the orders of Delhi Administration which they have passed on 02.03.1995. It is therefore made clear that the respondents shall pay the arrears to the applicants along with interest at 12% from the date it became due, namely, 02.03.1995 till the date of actual payment, and it is for the respondents to decide when such payment of arrears is to be made to the applicants, whether it is after the disposal of the RA or of a subsequent SLP in Supreme Court. Therefore, the respondents are directed to pay the arrears from 02.03.1995 along with 12% interest to the applicants. These orders shall also apply in respect of those persons who have already superannuated from amongst the applicants, both for the purposes of calculation of last pay as well as the payment of arrears. With these orders the C.P. No. 43/96 and C.P. No. 44/96 are disposed of. Notices discharged."
45. As arrears were not paid with interest, another CP No. 150/97 was filed in which order dated 30th May, 1997 was passed reiterating the award of interest at the rate of 12 per cent per annum till the final payment is made. Thereafter, another CP No. 349/98 was filed on the ground that interest as awarded in the earlier order passed in earlier CPs had not been paid, orders dated 10th December, 1998 and 27th August, 1999 were passed in this CP prima facie finding that the official respondents have committed a contempt and issuing notice. These are the orders which are challenged in this writ petition. The main ground of challenge is that the learned Tribunal by passing the aforesaid orders and enlarging the scope of impugned order 31st August, 1994 passed in OA No. 1526/90. It was argued that by order dated 31st August, 1994 the learned Tribunal had merely directed the Government to take further action in accordance with contents of letter dated 11th January, 1994, that order dated 2nd March, 1995 was accordingly passed. If this order was kept in abeyance by subsequent letter dated 18th January, 1996 in the contempt petition, the learned Tribunal could not direct payment of interest. It could not also enlarge the scope by extending the order to other PETs, may be similarly situated, when they were not party in OA. In support of these submissions, the learned counsel relied upon judgment in the case of Associate Banks Officers' Association v. State Bank of India and Ors..
46. We find force in the submissions of counsel appearing for the Government in this petition. There appears to be some merit in the contention that the learned Tribunal kept on giving further directions in the contempt petitions which were not contained in the impugned order dated 31st August, 1994. Furthermore, when it is held that the PETs are not entitled to the higher pay scale, in any case, these orders passed in contempt petition have to be quashed. However, while doing the same, we make it clear that in view of the peculiar facts and circumstances of this case, more particularly when such a situation is the creation of the Government, it shall not be entitled to recover the amount already paid to such persons.
47. This writ petition is allowed to the aforesaid extent. All these writ petitions, accordingly, stand disposed of.
48. There shall, however, be no order as to costs.
