Delhi High Court
Union Of India & Another vs Shri Megh Raj Singh & Others on 20 April, 2009
Author: A.K.Sikri
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
W.P.(C) No. 574-75 of 2004
Reserved on : March 17, 2009
% Pronounced on: April 20, 2009.
Union of India & Another . . . Petitioners
through : Mr. R.V. Sinha, Advocate
VERSUS
Shri Megh Raj Singh & Others . . . Respondents
through Mr. L.R. Khatana, Advocate
CORAM :-
THE HON'BLE MR. JUSTICE A.K. SIKRI
THE HON'BLE MR. JUSTICE SURESH KAIT
1. Whether Reporters of Local newspapers 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 respondents herein are the employees of the Department of
Agriculture and Cooperation working in various Divisions thereof.
This department comes under the Ministry of Agriculture,
Government of India. The dispute relates to the date from which
they are entitled to the grant of pay scale of Rs.6,500-10,500/-, which
W.P.(C) No. 574-75 of 2004 Page 1
was introduced pursuant to the recommendations of the 5th Central
Pay Commission.
2. It so happened that the 5th CPC made recommendations in Para 56.10
of its Report, for reconstructing the cadre of Senior Technical
Assistants (STA) and upgradation of 50% of the post of STAs
working in the Ministry of Agriculture in the upgraded pay scale
with their re-designation as STA Grade-I. Before 01.01.1996, the post
of STA carried the pay scale of Rs.1640-2900. Recommendation of the
Pay Commission was that 33 out of 66 posts (i.e. 50%) should be
placed in the pay scale of Rs.2000-3500/- and re-designation as STA
Grade-I. Implementing these recommendations, orders dated
29.09.1999 were issued by placing 50% posts in the re-designated
grade of STA Grade-I and giving them corresponding pay scale of
Rs.6500-10500/-. However, the grievance of these respondents about
that order was that the pay scale of Rs.6500-10500/- was given w.e.f.
27.09.1999 (corresponding to pre-revised scale of Rs.2000-3500/-).
The respondents, under these circumstances, filed OA before the
Tribunal under Section 19 of the Administrative Tribunal Act
claiming the benefit of revised pay scale w.e.f. 01.01.1996 instead of
W.P.(C) No. 574-75 of 2004 Page 2
27.09.1999. The Tribunal has allowed the prayer of the respondents.
Feeling dis-satisfied with this outcome of the OA, the present writ
petition is preferred by the petitioner impugning the aforesaid
judgment dated 04.09.2003.
3. Submission of learned counsel for the petitioner was that the grant of
upgradation of 50% posts of STAs to that of STA Grade-I was not
automatic. This could only be done after restructuring of the cadre.
Consequently, after the recommendation of the 5th CPC, restructuring
exercise was undertaken and only after this exercise orders dated
29.09.1999 were issued. Such orders, therefore, had to be prospective
in nature which stipulation was specifically mentioned in the said
orders. He also submitted that such prospective operation was in
consonance with the CCS (Revised Pay) Rules, 1997 and particularly
part (b) thereof, the relevant portion of which reads as under:
"In certain other cases where there are conditions prescribed by
the Pay commission as prerequisite for grant of these scales to
certain posts such as cadre restructuring, redistribution posts, etc,
it will be necessary for the Ministries/Department concerned to
not only accept these pre-conditions but also to implement them
before the scales are applied to those posts. It would, therefore,
be seen that it is implicit in the recommendations of the Pay
Commission that such scales necessarily have to take prospective
W.P.(C) No. 574-75 of 2004 Page 3
effect and concerned posts will be governed by the normal
replacement scales until then."
4. The learned counsel submitted that the Tribunal exceeded its
jurisdiction while exercising its power of judicial review by giving
retrospective operation to orders dated 29.09.1999. Ignoring the fact
that the Competent Authority had taken a conscious decision, as a
policy matter, keeping in view the recommendations of the expert
body like Pay Commission. He also relied upon the following
observations of the Supreme Court in the case of Government of
Andhra Pradesh & Ors. Vs. N. Subbarayudu & Ors., JT 2008 (4) SC
282 , which is as under:
"7. There may be various considerations in the mind of the
executive authorities due to which a particular cut off date has
been fixed. These considerations can be financial, administrative
or other considerations. The Court must exercise judicial
restraint and must ordinarily leave it to the executive authorities
to fix the cut off date. The Government must be left with some
leeway and free play at the joints in this connection.
8. In fact several decisions of this Court have gone to the extent
of saying that the choice of a cut off date cannot be dubbed as
arbitrary even if no particular reason is given for the same in the
counter affidavit filed by the Government, (unless it is shown to
be totally capricious or whimsical) vide State of Bihar v. Ramjee
Prasad [JT 1990 (2) SC 225; 1990 (3) SCC 368], Union of India &
Anr. v. Sudhir Kumar Jaiswal [JT 1994 (3) SC 547; 1994 (4) SCC
212] (vide para 5), Ramrao & Ors. v. All India Backward Class
W.P.(C) No. 574-75 of 2004 Page 4
Bank employees Welfare Association & Ors. [JT 2004 (1) SC 331;
2004 (2) SCC 76] (vide para 31), University Grants Commission
v. Sadhana Choudhary & Ors. [JT 1996 (9) SC 234; 1996 (10) SCC
536], etc. It follows, therefore, that even if no reason has been
given in the counter affidavit of the Government or the executive
authority as to why a particular cut off date has been chosen, the
Court must still not declare that date to be arbitrary and violative
of Article 14 unless the said cut off date leads to some blatantly
capricious or outrageous result.
9. As has been held by this Court in Divisional Manager, Aravali
Golf Club & Anr. v. Chander Hass & Anr. [JT 2008 (3) SC 221]
and in Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi
Devi [JT 2008 (2) SC 639] the Court must maintain judicial
restraint in matters relating to the legislative or executive
domain."
His submission was that a conscious decision was taken by the
Ministry of Finance giving approval from prospective date on the
ground that in the instant case, since the redistribution of post was
involved, the benefit of higher pay had to be extended on the
prospective basis only.
5. Mr. L.R. Khatana, learned counsel for the respondents on the other
hand argued that totally wrong twist is sought to be given, otherwise
a plain and simple issue. He referred to the recommendation of 5th
CPC relating to upgradation of these posts as per which 33 out of 66
posts (i.e., 50% posts) were to be upgraded to STA Grade-I. There
W.P.(C) No. 574-75 of 2004 Page 5
was no requirement or necessity to undertake any or reconstruction,
before granting this grade. However, without any rationale, rhyme
or reason, it was made effective from 27.09.1999 whereas the
recommendations of 5th Pay Commission were enforced, as a policy
decision, from 01.01.1996. According to him, there was no reason to
fix any other date. He also submitted that as per recommendations of
5th Central Pay Commission itself, the matter only related to re-
designation. The post of STA Grade-I was, in fact, even being treated
as non-functional. Therefore, the conditions stipulated in the Revised
Pay Rules which were relied upon by the learned counsel for the
petitioner were not applicable in the instant case. On the contrary,
according to him, Para 56.10 of the Central Pay Commission‟s
recommendations was complete answer and clearly spelled out as to
how the pay scales were to be upgraded. He further submitted that
this para related to the Scientific and Technical staff in all
Government Ministries and Organisations and therefore, had to be
followed by everyone in the same manner. Instead, it was only in
respect of the department of Agriculture and Cooperation where the
respondents were employed that the dated of 27.09.1999 was fixed
W.P.(C) No. 574-75 of 2004 Page 6
for giving effect to the recommendations. In other organizations and
the Government Departments, the date was fixed and thus even
amounted to even hostile discrimination, which was not permitted as
held by the Supreme Court way back in the year 1973 in the case of
Purshottam Lal and Others Vs. Union of India and other, (1973) 1
SCC 651.
6. After hearing the counsel for the parties and going through the
records of this case, we find ourselves in agreement with the
submissions of the learned counsel for the respondents and are of the
view that he Tribunal in the impugned order has decided the issue
rightly. We may, in the first instance, reproduce Para 56.10 of the
Report of the 5th Central Pay Commission as that is the genesis of the
trigger point:
"56.10 Among the scientific and technical staff, there are 12
Technical/Jr. Technical Assistants in the scale of pay of Rs.1400-
2300. While 9 of them are required to possess a degree in
agriculture as the minimum qualification 3 of them, working in
the Credit Division have been recruited with qualifications in
Economics and Statistics. We recommend that posts of
Technical Assistants where a degree in science is the minimum
essential qualification may be placed in the scale of Rs. 1600-
2660. 66 Senior Technical Assistants (including 6 in Economics
and Statistics and 2 in Law), most of whom are direct recruit
post-graduates and graduates in Agricultural Sciences with direct
W.P.(C) No. 574-75 of 2004 Page 7
promotion avenues to Group A in their respective Divisions, after
rendering 5-8 years of service, are in the scale of pay of Rs. 1640-
2900. They have represented that over a period of time both
Section Officers, as well as Assistants of the Central Secretariat
Service have been upgraded. A degree in Agriculture or
Agricultural Sciences does not take less than 4 years of education.
We recommend that 33 posts of Senior Technical Assistants
should be placed in the scale of pay of Rs.2000-3500 and be re-
designated as Senior Technical Assistant Grade I, retaining the
balance 33 posts in the existing pay scale but with the
designation of Senior Technical Assistant Grade II. The next
higher grade comprises 10 posts of Technical Officers, Assistant
Directors and Assistant Development Officers in the scale of pay
of Rs.2000-3500. As direct recruitment already exists at the two
lower levels of Senior Technical Assistant and Technical
Assistant, this grade may be retained as a 100% promotion
grade for the Senior Technical Assistants and placed in the
scale of pay of Rs.2500-4000. The next higher level will be the
Central Agriculture Service proposed in para 62.13. Like all the
organized Group A services, the Central Agriculture Service may
provide for a percentage of promotion not exceeding 50%."
7. The recommendation in Para 56.10 of the Report of 5th Central Pay
Commission includes:
a) 9 out of 12 posts of Technical/Junior Technical Assistant
in the pay scale of Rs.1400-2300/- be placed in pay scale
of Rs.1600-2660/-. It was to be done on those cases where
a degree in Science is the minimum essential qualification.
b) In respect of STAs with which we are concerned, Pay
Commission noted that there were 66 posts in STAs most
of whom who manned these posts were direct recruit
Post-graduates and Graduates in Agriculture Science.
W.P.(C) No. 574-75 of 2004 Page 8
These were in the pay scale of Rs.1640-2900/-, which they
got after rendering 5-8 years of service.
c) The Pay Commission also noted that they had
represented that over a period of time both Section
Officers as well as Assistants of the Central Secretariat
services had been upgraded. It takes normally 04 years
of education to obtain degree in Agriculture or
Agricultural Science. On this basis, the Commission
recommended 50% of STAs to be placed in the pay scale
of Rs.2000-3500/- by re-designating them as STA Grade-I
and remaining 33 posts to be retained in the existing pay-
scale with the designation of STA Grade II.
d) The specific recommendation is: "We recommend that 33
posts of Senior Technical Assistants should be placed in
the scale of pay Rs.2000-3500/- and be re-designated as
Senior Technical Assistant Grade-I ..........."
8. The impugned order dated 29.09.1999 inter alia stipulated as under:
"In pursuance of the recommendations of the Fifth Central Pay
Commission vide para 56.10, as accepted by the Government
vide Part C First Schedule of Ministry of Finance (Department of
Expenditure) Notification No. F.50(1)/IC/97 dated 30.09.99, and
with the approval of Competent authority, 50% posts of Senior
Technical Assistant (Group „B‟, Non-gazetted, Non-ministerial) in
various disciplines in the Department of Agriculture and
Cooperation have been re-designated as Senior Technical
Assistant (Agriculture) Grade-I (Group „B‟, Non-gazetted, Non-
ministerial) and granted upgraded pay scale of Rs.6500-10500/-."
W.P.(C) No. 574-75 of 2004 Page 9
9. It is clear that the recommendation contained in Para 56.10 of the
Report of the 5th CPC has been accepted per se by the Government
vide Notification dated 29.09.1997 and 50% posts of STAs are re-
designated as STA (Agriculture) Grade-I.
10. However, while granting the upgraded pay scale, the date of
27.09.1999 is stipulated from which date it is made effective. The
justification sought to be given in this behalf was that restructuring
exercise was to be done. We do not find that any such „restructuring‟
was even required. It was a simple recommendation whereby 50%
posts were to be "upgraded" by "re-designating" them. One has to
keep in mind the distinction between „restructuring‟ of a cadre after
undertaking requisite exercise and „re-designation‟ of a post which is
only a ministerial act. Justification for giving higher pay scale was
given by the Pay Commission itself. Once this recommendation is
accepted, there was no other exercise, which was needed. Therefore,
stating that it could only be done after „restructuring‟ or that re-
distribution of post was involved is a ploy to deny the benefit from
the date it is otherwise legitimately due. After upgrading the pay
W.P.(C) No. 574-75 of 2004 Page 10
scale, higher pay scale is given to 50% incumbents and upgradation
of post is involved. Because of this reason, no amendment in the
governing rules by which the respondents are involved was carried
out.
11. The respondents had obtained information under Section 19(i) of
Right to Information Act, 2005, which was given to them vide orders
dated 10.10.2006. It is clearly mentioned that post of STA Grade-I
was being treated as non-functional at present. The very basis for
denying the benefit from a posterior date, thus vanishes.
12. No doubt, it is not the province of the Court to fix cut-off date. That
is the prerogative of the employer/Government. However, it is the
Government itself, which has fixed the cut-off date of 01.01.1996
while implementing the recommendation of 5th Pay Commission.
Furthermore, in all other departments wherever upgradation of pay
scale is involved, the benefit is given w.e.f. 01.01.1996. It is clear from
the following chart provided by the learned counsel for the
respondents at the time of hearing which fact could not be denied by
the learned counsel for the petitioner:
W.P.(C) No. 574-75 of 2004 Page 11
"Details of Senior Technical Assistant and Equivalent Post
who have been granted Upgraded Pay-scales with effect
from 1.1.1996
S Name of the Ministry/ Upgraded Date of Order No.
No Post Department Scales Implementation
awarded
1. Senior Ministry of Agriculture Rs.6500- 1.1.1996 6-34/97-
Technical Department of Agriculture 10500/- Fert.plg.
Assistant & Cooperation (National dated
Bio-Fertilizer Development (Annexure-I)
Centre (Page 1)
2. Research Ministry of Agriculture Rs.6500- 1.1.1996 13(7)/97/EST
Investigator Department of Agriculture 10500/- T. I-ES Dated
Grade (I) & Cooperation (Directorate 19.4.1999
(Economics) of Economics & Statistics) (Annexure -
II) (Page 2-3)
3. Senior Ministry of Health and Rs.6500- 1.1.1996 4-11026/2/
Technical Family Welfare 10500/- 97-D Dated
Assistants (Directorate General of 15.01.2001
(STA Drugs) Health Services) (Drugs (Annexure-I)
Section) (Page 4)
4. Senior Ministry of Corporate Rs.6500- 1.1.1996 6/13-97/-IC-
Technical Affairs, (Department of 10500/- II Dated
Assistants Company Affairs) 2.7.1999
and (Annexure-
Investigating IV) Issued by
Officer Ministry of
Finance
(Department
of
Expenditure
(Page 5)
5. Economic Planning Commission Rs.6500- 1.1.1996 A-
Investigator 10500/- 22011/1/97-
Grade-I Adm-IV
Dated
26.11.98
(Annexure-V)
(Page 7-9)
6. Senior Ministry of Finance, Rs.6500- 1.1.1996 14013/97-IES
Investigator/ (Department of Economic 10500/- Dated 25.8.98
Economic Affairs) (Annexure-
Investigator IV) (Page 7-9)
(IES)
W.P.(C) No. 574-75 of 2004 Page 12
7. Junior Ministry of Rs.6500- 1.1.1996 1-1/97-PAT
Technical Communication, 10500/- Dated
Officer (JTO) Department of 24.10.97
Telecommunication (Annexure-
VII) (Page 10-
11)
Others
1. Assistant Ministry of Agriculture Rs.7500- 1.1.1996 F.No.44011/4
Director/ Department of Agriculture 12000/- /98-ESTT.V
Technical & Cooperation dated
Officers/ 24.3.2000
Assistant (Annexure-
Development VIII) (Page 12)
Officer
2. Technical Ministry of Agriculture Rs.5000- 1.1.1996 11014-3/97-E-
Assistant Department of Agriculture 8000/- IV dated
& Cooperation 20.3.1998
(Annexure-
IX) (Page 13-
14)
"
13. Therefore, it is misconceived on the part of the petitioner to contend
that the Tribunal has exceeded the power in fixing for changing the
cut-off date. The entire case needs to be viewed from another angle,
viz., that of discrimination. Different cut-off dates could not be fixed
for STAs in the various Divisions of the Department of Agriculture
and Cooperation where the respondents are working. All their
counter parts are given the upgraded pay scale of Rs.6500-10500/-
w.e.f. 01.01.1996. Interestingly, the aforesaid chart would show that
another centre in the same department, i.e., National Bio-Fertilizer
W.P.(C) No. 574-75 of 2004 Page 13
Development Centre has given same pay scale to the holder of the
same post, viz., Senior Technical Assistants w.e.f. 01.01.1996. It is
thus a case where dicta laid down by the Constitutional Bench in
Purshottam Lal (supra) clearly applies. In that case, the Court found
different treatment given while implementing report of the 2nd Pay
Commission to different states of employees and held the same to the
discriminatory and violative of Article 14 and 16 of the Constitution.
It was held that recommendations would be applicable to all Central
Government Employees being paid through Consolidated Fund of
India. Employees of Forest Reserve Institute were given the revised
pay since 1962 while other employees got it from 1959 as per
recommendation of the Second Pay Commission. Striking it down
the Court held the following view:
"15. Mr. Dhebar contends that it was for the Government to
accept the recommendations of the Pay Commission and while
doing so to determine which categories of employees should be
taken to have been included in the terms of reference. We are
unable to appreciate this point. Either the Government has
made reference in respect of all Government employees or it
has not. But if it has made a reference in respect of all
Government employees or it has not. But if it has made a
reference in respect of all Government employees and it accepts
the recommendations it is bound to implement the
recommendations in respect of all Government employees. If it
does not implement the report regarding some employees only it
W.P.(C) No. 574-75 of 2004 Page 14
commits a breach of Articles 14 and 16 of the Constitution. This
is what the Government has done as far as these petitions are
concerned."
14. We also find from the judgment of the Tribunal that it found that the
STAs of National Bio-Fertilizer Development Centre were at par with
the respondents. In fact, in respect of STAs and NBDC, Fifth Pay
Commission had not even made any specific recommendation. Still
after considering their representation and accepting the same, orders
were passed on 29.09.1999 giving pay scale of Rs.6500-10500/-,
making it effective from 01.01.1996. Taking note of the facts, the
Tribunal further observed as under:
"While giving effect to the recommendations of the Vth CPC vide
para 56.10 of the report, the respondents have allowed higher
revised pay scale in the case of Technical Officers, Assistant
Directors (Crops) and Assistant Development Officers (Manures)
vide their order dated 24.3.2000 w.e.f. 1.1.1996. This relates to the
next higher grade of STA Grade I. However, when the
recommendations of the Vth CPC vide para 56.10 in the case of
the applicants was being implemented vide their order dated
29.9.1999, the 50% of the STAs have been designated as STA
(Group „B‟ Non Gazetted, Non-Ministerial) in the scale of
Rs.6500-10500 and the others in the replacement scale of Rs.5500-
9000 have been granted upgraded pay scale w.e.f. 27.9.1999. In
spite of the specific pleadings taken by the applicants, the
respondents have not given any cogent reasons for giving the
effect from 27.9.1999 to the applicants instead of 1.1.1996 as in
the cases of others. We find that even in the case of STAs of
NBDC where there was no recommendations, the pay scale has
W.P.(C) No. 574-75 of 2004 Page 15
been given w.e.f. 1.1.1996. The learned counsel of the applicants
at the time of arguments also invited attention to certain other
orders in other organizations where the upgradation has been
given effect to w.e.f. 1.1.1996. For example in Central Drugs
Standard Control Organizations, the Directorate General of
Health Services had issued office orders dated 15.1.2001 giving
the revised upgraded pay scale to STAs w.e.f. 1.1.1996. No
specific legal impediment has been shown to us for
implementation of the recommendations of Vth CPC vide para
56.10 accepted by the Govt. of India w.e.f. 1.1.1996, we find that
the date from which the orders have been implemented is prima
facie, arbitrary and discriminatory. We, therefore, quash and set
aside the order dated 29.9.1999 to this limited extent that the
same be made effective from 1.1.1996 instead of 27.9.1999. As a
consequence of this order, the applicants will be entitled to
arrears of pay and allowances, if any, due to them but without
any interest. This may be paid to them within three months from
the date of receipt of a copy of this order."
15. Expressing our agreement with the aforesaid reasoning, we dismiss
the present writ petition as devoid of any merit.
(A.K. SIKRI)
JUDGE
(SURESH KAIT)
JUDGE
April , 2009.
pmc
W.P.(C) No. 574-75 of 2004 Page 16
