Delhi High Court
Kishan Chand Sharma & Others vs Union Of India & Another on 4 July, 2008
Author: A.K.Sikri
IN THE HIGH COURT OF DELHI AT NEW DELHI
+WP(C) No.13226/2005
Date of Decision: 04.07.2008
#Kishan Chand Sharma & Others ....Petitioner
! Through: Mr.Sudarshan Rajan
Versus
$Union of India & Another .....Respondents
^ Through Mr.R.C. Nangia
CORAM :-
*THE HON'BLE MR.JUSTICE A.K.SIKRI
THE HON'BLE MR. JUSTICE J.R. MIDHA
1.Whether Reporters of Local papers may be allowed to
see the Judgment?
2.To be referred to the Reporter or not?
3.Whether the judgment should be reported in the Digest?
A.K. SIKRI, J.
:
1. The petitioners herein are working as Draftsmen Grade „A‟ in
the Railway Board and were given the replacement scale of
Rs.4500-7000 on the implementation of the Fifth Central Pay
Commission (in short „5th CPC‟). Their counterparts, i.e.,
Draftsmen Grade II working in the Zonal Railways were,
however, placed in the revised scale of Rs.5000-8000. On the
plea that they were in the same scale as Draftsmen Grade II
before implementation of the 5th CPC and also that their
qualification and duty etc. are same, they demanded the pay
scale of Rs.5000-8000. Their request was rejected, which
compelled them to file OA before the Central Administrative
Tribunal, Principal Bench, New Delhi. This OA has also been
dismissed vide judgment dated 29.10.2004 and impugning
that judgment, present writ petition is filed. The contention
of the petitioners is that they have been working as
Draftsmen in the pay scale of Rs.1400-2300 since 1994. This
post is filled 100% by promotion from the feeder grade
draftsman Grade "B". However, in the Zonal Railways, 80%
posts in Draftsman Grade-II are filled up by promotion and
20% by Direct recruitment. The minimum qualification for
feeder grade in both these posts is the same, i.e.,
Matriculation and certificate/diploma in Draftsmanship. The
pay scale of petitioners and Draftsman Grade II of Zonal
Railways till 4th CPC. Howsoever, disparity arose after the
implementation of the 5th CPC whereby the Draftsman Grade
II of Zonal Railways were given the replacement scale of
Rs.5000-8000, whereas the petitioners were given the scale
of Rs.4500-7000.
2. Mr.Rajan, learned counsel for the petitioners, was at pain to
submit that it was a case of hostile discrimination when the
petitioners and the Draftsmen Grade II were treated alike till
31.12.1995 and with effect from 1.1.2006 they were placed in
different scales. His submission was that this happened
notwithstanding the fact that the clarifications for the post of
Draftsmen Grade „A‟ as well as the Draftsmen Grade II were
same. For this purpose, he referred to the Recruitment Rules
specifying the clarifications for appointment/promotions to
these posts. He also submitted that the petitioner had earlier
filed OA No.855/2000 seeking this relief, but the Tribunal had
dismissed the said OA. Thereafter, review of that order was
also sought by petitioners but the same was not entertained.
The petitioners thereupon filed writ petition before this Court
which remanded the matter back to the Tribunal to consider
the review application filed on the limited question of revision
of the pay scale at Rs.5000-8000 instead of Rs.4500-7000.
Learned counsel submitted that thereafter the review was
disposed of by the Tribunal vide order dated 3.10.2002
directing the Department to constitute an Anomaly
Committee. He argued that the Anomaly Committee, while
rejecting the plea of the petitioners, ignored the observations
of the Tribunal contained in order dated 3.10.2002 wherein
the Tribunal had clearly observed as under:-
"8. Taking into account the above
recommendations of the subsequent
replacement scale accorded to the Draftsmen
Grade II by the Govt. of India, i.e., Rs.425-700
revised to Rs.1400-2300, we se force in the
submissions made by Shri K.B.S. Rajan, Learned
Counsel that the expert bodies like the 3rd and 4th
Pay Central Pay Commissions have considered
the qualifications possessed by these persons for
direct recruitment as either the same or similar,
i.e., Matric or 10 + 2 + Diploma in engineering or
equivalent. It is not disputed by the respondents
that till the recommendations of the 5th Central
Pay Commission, Draftsmen Grade II/Draftsmen
Grade „A‟ in Zonal Railways and Railway Board,
respectively were getting the same pay scale,
i.e., revised pay scale of Rs.1400-2300.
However, the disparity in the pay scale has crept
in after the recommendations of the 5th Central
Pay Commission. In this connection, we also see
force in the submissions made by Shri K.B.S.
Rajan, learned counsel, that when the
qualifications for direct recruitment as they
existed previously have already been equated,
excepting the same revised pay scale for these
two categories of persons, the question would
arise whether after the 5th Central Pay
Commission, they can make distinction based on
the qualifications required for direct recruitment
in the lower pay scales as has been done by the
respondents presently."
3. Learned counsel for the petitioners further submitted that
the duties of both Draftsmen Grade „A‟ as well as Draftsmen
Grade II were the same as noted by the Tribunal in the
aforesaid order. In fact, the petitioners were performing
supervisory duties over the zonal office staff and therefore,
they could not have been given lesser pay.
4. Mr.Nangia, learned counsel appearing for the respondents, on
the other hand, countered the aforesaid submission. He
raised fervent plea to the effect that the comparison of the
job profile, qualification, duties, mode of appointment etc. of
the two posts is the function of the expert bodies like the Pay
Commission and the Anomaly Committee. In the present
case, neither the 5th CPC recommended such higher pay
scales for the Draftsmen Grade „A‟ nor the Anomaly
Committee found any merit in the claim of the petitioners.
Therefore, this Court should not interfere with this exercise
more so when the Tribunal, after taking note of these
submissions, found justification in the exercise done by the
5th CPC as well as the Anomaly Committee
5. After hearing the counsel for the parties and considering the
matter we find force in the submission of the learned counsel
for the respondents and are of the view that the Tribunal has
rightly rejected the application of the petitioners herein. We
find that the 5th CPC specifically dealt with this aspect. While
considering the case of the Senior Draftsmen/Draftsmen
Grade II in the Zonal Offices, the 5th CPC specifically
recommended the replacement scale of Rs.1600-2660 in their
case. This is clear from discussion contained in Para 83.177.
This para comes under discussion in respect of the employees
of Zonal Railways, under the heading "Zonal Railway
Management", discussion with regard to which category
starts with Para 83.65. In so far as personnel working in the
Railway Board are concerned, the matter regarding their
wage revision is specifically dealt with in Para 83.7 onward. It
is obvious from the above that the recommendation
contained in para 83.177 deals with the Senior Draftsmen
working in Zonal Railways and does not apply to the persons
like the petitioners, who are working in the Railway Board.
We may also note that when the matter was referred to the
Anomaly Committee, it precisely dealt with the same
question, as raised by the petitioners and their plea, on the
basis of which they are seeking pay parity, was discussed
specifically. The Anomaly Committee, however, found that
there were so many disparities between the cadre structure
and pay scale of the Railway Board and Zonal Railway
Draftsmen. The same is filed by the respondents in a
tabulated form as under:-
S.No Name of Pay Scale Recruitment Name of Pay Scale Recruitment
Post (RP/RPS/RSRP) Qualification post (RP/RPS/RSRP) qualification
1. Head Rs.700-900/ 100% by Chief Rs.700-900 100% by
Draftsman Rs.2000-3200 promotion 3 Draftsmen Rs.2000-3200 promotion
Rs.6500- years Rs.6500-10500
10500 experience in
the lower grade
(Non-selection)
2 Senior Rs.550-750 100% by Draftsman Rs.550-750 75% by
Draftsman Rs.1600-2660 promotion 3 Gr.I Rs.1600-2660 promotion
Rs.5000-8000 years Rs.5500-9000 25% direct
experience in recruitment
the lower grade from Engg.
(Selection) Graduates in
respective
engineering
discipline
3 Draftsman Rs.425-700 100% by Draftsman Rs.425-700 80% by
Gr. „A‟ Rs.1400-2300 promotion 5 Gr.II Rs.1400-2300 promotion
Rs.4500-7000 years Rs.5000-8000 20% by direct
experience in recruitment
the lower grade from Engg.
(Non-selection) Diploma
holders of 3
years duration
4. Draftsman Rs.330-560 By direct Draftsman Rs.330-560 Minimum ITI
Gr. „B‟ Rs.1200-2040 recruitment Gr. III Rs.1200-2040 certificate in
Rs.4000-6000 Matriculation Rs.4000-6000 draftsmanship
with certificate/ from
diploma in recognized
Draftsmanship Institute
Diploma
(Engg./Drafts
manship)
holders are
also eligible
6. In the counter affidavit, the respondents have further
explained that the Railway Board has its own staff structure
and pay scales. The Railway Board is separately dealt with in
the Pay Commission Reports. The Zonal Railways which are
generally referred to as Railways are governed by separate
recommendation of Central Pay Commission and separate
decisions. The 5th Central Pay Commission has generally
followed the principle of improved pay scales for higher level
of qualifications and skills. This is in line with the overall
objective of the Government to gradually upgrade the level of
literacy and skills amongst its employees with a view to
enhance the overall working efficiency. It is explained that in
terms of the instructions contained in Paras 153 and 154 of
the Indian Railways Establishment Manual (1989 Edition) on
the Zonal Railways, there is an element of direct recruitment
of diploma holders in Engineering in the category of
Draftsmen Grade II in the scale of Rs.1400-2300 whereas the
direct recruitment in the case of Railway Board Drawing Staff
is made at Grade III in the pay scale of Rs.1200-2040 with the
qualification of Diploma in Draftsmanship. It is further
explained that the recruitment qualifications prescribed for
entry in Grade of Rs.1400-2300 (revised scale of Rs.5000-
8000) is Diploma in Engineering discipline which is distinct
and superior to diploma in Draftsmanship. Moreover,
duration of diploma in Engineering discipline is of three years,
whereas the duration of diploma in Draftsmanship is two
years, and this fact cannot be overlooked/ignored while
drawing any parallel between the Railway Board‟s Draftsmen
and Zonal Railways‟ Draftsmen. This is in line with
recommendations of the 5th CPC wherein in Para 50.37(1) the
Commission has further articulated:
"There should be identical pay scales for
posts with identical recruitment
qualifications. Specific requirements of
individual departments may be taken care
of by the respective administrative
ministries, which may, if justified, prescribe
pay scales different from the general pay
scales recommended by us below."
7. It is also explained that the Railway Board thoroughly
examined the matter of grant of scale of pay to its employees
in the light of the recommendations of the 5 th CPC and after
considering all the relevant factors issued separate
notifications for revision of pay scales as per the Report of the
5th CPC in respect of the Zonal Railways and the Railway
Board staff. The Drawing staff of the Railway Board have
been allotted normal replacement scales because the
qualifications mentioned for direct recruitment, on the basis
of which higher replacement scales have been recommended
by the 5th CPC for the Draftsmen of the Zonal Railways, are
not prescribed in the cadre of Drawing staff of Railway Board.
However, the staff on Zonal Railways have been allotted
different/superior pay structure because they possess the
prescribed direct recruitment qualifications. The question of
change in recruitment qualification so as to grant similar pay
scales as available to Zonal Railways staff or CPWD or other
Central Ministries was also examined so that such
recruitment shall actually take place and in due course of
time, the mix in the cadre would acquire a new character.
However, in view of the fact that Drawing cadre was a
diminishing one, such exercise would have largely been an
academic exercise. Therefore, change in recruitment
qualification was not attempted. It is further explained that in
1995 it was decided that due to technology upgradation in
the form of introduction of computers and with the softwares
like AUTOCAD and AUTOCAM, further recruitment in the entry
grade in drawing cadre be stopped. As such, there is no fresh
recruitment thereafter. Also the vacancies resulting in
promotion of staff to higher grades are not being filled up.
Therefore, the Drawing cadre is now a diminishing cadre.
8. It is also clarified that howsoever long the list of duties of the
Draftsmen of the Railway Board may be, it is a fact that
hardly any original work relating to drawing/design gets down
in the Drawing Office of the Railway Board. Original designs
are done by the Field Units in the Zonal Railways and on the
basis of the same drawing is developed by the Draftsmen in
the Railway Board. A perusal of duty lists of Draftsmen in
different Directorates of Railway Board reveals that
discharging of the most of the listed duties do not require any
technical knowledge and skill and as such can be handled by
non-technical personnel as well. There are 33 posts spread
over four grades ranging from Rs.6500-10500 to Rs.4000-
6000 and the on-roll cadre strength is 20. This high level of
vacancies is also indicative of the fact that the work has
lessened considerably. It is further clarified on the basis of
the statements of the recruitment qualifications and the
duties of the Draftsmen of the Railway Board, to which the
petitioners belong, and the Zonal Railways, are distinctly
different in so far as the nature and volume is concerned. In
the Railway Board‟s office, with the automation of work with
computers, the work load has considerably reduced. The
staff in the Railway Board is mainly performing secretarial
work, viz., preparation of statements and monitoring progress
on Zonal Railways. Keeping in view these factors, the
petitioners have been rightly given the normal replacement
scale of Rs.4500-7000 in place of their earlier scale of
Rs.1400-2300.
9. In view of the above, we do not find any fault with the
decision of the Government in giving different pay scales that
too when it is based on the recommendation of the Pay
Commission. It is trite law that such a task is best left to the
expert bodies like the Pay Commission and the Anomaly
Committees. The exercise done by them does not appear to
be either perverse or irrational or discriminatory. The
Tribunal in this respect has taken note of the observations of
the Supreme Court as is clear from para 8, which reads as
under:-
"8. It may not be out of place to mention
that it is not the function of the
Tribunal/Courts to determine the pay scales of
a particular category of staff, based on parity
with another set of employees. Such a task is
best left to the expert bodies like Pay
Commission. In this connection, we are
relying on the judgment of the Hon‟ble
Supreme Court in the case of State of
Haryana Vs Haryana Civil Secretariat
Personal Staff Association (AIR 2002 S.C.
2589) in which it was held that fixation of pay
and determination of parity in duties and
responsibilities is a complex matter which is
for executive to discharge. Ordinarily the
courts should not try to delve deep into
administrative decisions pertaining to pay
fixation and pay parity. In another case UOI
and Anr. Vs. P.V. Hariharan and Anr.
(1997) 3 SCC 568, the Hon‟ble Supreme Court
held that unless there is a clear case of hostile
discrimination, there can be no judicial
interference into the recommendations of Pay
Commission. Further, the fixation of pay scale
is the function of the Govt. and not of
Administrative Tribunals and, therefore, the
administrative Tribunal should not interfere
with the pay scales without proper reasons
and without being conscious of the fact that
fixation of pay was not their function. Similar
observations were made by the Hon‟ble
Supreme Court in the case of Union of India
and Others Vs. Pradip Kumar Dey on the
question of pay parity to the effect that in the
absence of material relating to other
comparable employees as to the qualification,
method of recruitment, degree of scheme,
experience involved in performance of the job,
training required, responsibilities undertaken
and other facilities in addition to pay scales,
court cannot order grant of relief. On the
question of equal pay for equal work, it was
held that it was for the administration to
consider such matters and court should leave
it to the wisdom of administration (JT 2000
(Suppl. 2) SC 449). Besides, tinkering with the
pay scales of a particular set of employees will
have a cascading effect on similarly placed
employees in other departments and will also
disturb the relativity of pay scales of pay
scales of other cadres, which cannot be
adjudicated upon by the Tribunal. Such
matters should, therefore, be left to be
decided by Pay Commissions, which take into
consideration all the relevant factors,
including relativities of pay scales with other
cadres, before finalizing their
recommendations. Anomaly, if any, can be
taken care of by Anomaly Committees. In the
instant case, both the Pay Commission as well
as the Anomaly Committee have considered
the proposal. The respondents have passed a
well reasoned speaking order, after
considering the recommendations of both CPC
and Anomaly Committee. Considering the
facts and circumstances of the case, we also
do not find any hostile discrimination in the
treatment meted out to the applicants. We
are inclined to agree with the decision of the
respondents and do not find any justifiable
reason to interfere in the matter, taking into
consideration the rulings given by the Hon‟ble
Supreme Court in the cases cited above."
10. We are, thus, constrained to dismiss this writ petition.
However, there shall not be any orders as to costs.
(A.K. SIKRI)
JUDGE
July 04, 2008 (J.R. MIDHA)
HP. JUDGE
