Delhi High Court
Shri Krishan Lal & Others vs Union Of India & Ors. on 11 December, 2009
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on: 30.11.2009
% Judgment Delivered on: 11.12.2009
+ (1) W.P(C)5777/2007
SHRI KRISHAN LAL & OTHERS ..... Petitioners
Through: Mr. Pramod Kumar Sharma and
Mr. Deepak Raja, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. A. K. Bhardwaj, Advocate.
AND
(2) W.P(C) 5789/2007
SHRI M.R.SATYARTHY ..... Petitioner
Through: Mr. Pramod Kumar Sharma and
Mr. Deepak Raja, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. A. K. Bhardwaj, Advocate.
AND
(3) W.P(C) 5812/2007
SHRI T.R.SACHDEV & ORS ..... Petitioners
Through: Mr. Pramod Kumar Sharma and
Mr. Deepak Raja, Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. A. K. Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI
W.P.(C) Nos.5777/2007, 5789/2007 & 5812/2007 Page 1 of 30
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
VIPIN SANGHI, J.
1. This common order shall dispose off the aforesaid three
writ petitions preferred against the common order passed by the
Central Administrative Tribunal, Principal Bench, New Delhi, inter
alia, in O.A. No.2230/2006 filed by Sh. Krishan Lal and six others
(from which W.P.(C) No.5777/2007 arises), O.A. No.1778/2006 filed
by Sh. M.R. Satyarthy (from which W.P.(C) No.5789/2007 arises), and
O.A. No.2231/2006 filed by Sh. T.R. Sahdev and 26 others (from
which W.P.(C) No.5812/2007 arises). The Original Applications of the
petitioners have been dismissed by the Tribunal on the ground of
limitation and also by distinguishing the various decisions relied on
by the petitioners to claim the reliefs as claimed by them. Since the
issues arising in these petitions are the same, we are dealing with all
these petitions at the same time. For the sake of convenience, we
are taking some facts from W.P.(C) No.5777/2007 to understand the
controversy. The facts and issues arising in the other cases are also
similar.
2. The petitioners Sh. Kishan Lal and six others filed O.A.
No.2230/2006 to seek directions to re-fix their pay under the new
Electronic Data Processing (EDP) pay scales of Data Processing
Assistant Grade-A (Rs.1600-2660), Data Processing Assistant Grade-
B (Rs.2000 - 3200) and Programmer (Rs.2375-3500) w.e.f.
01.01.1986, or from the date of their appointment on the post of
Senior Computer, Statistical Assistant and Assistant Programmer,
whichever is later, with all consequential, monetary and pensionary
benefits. To claim the said relief they relied on the decision of this
Court in Civil Writ Petition No.1212 of 1999 dated 10.01.2002 titled
Union of India & Ors. v. B.N. Sharma & Ors. and the judgments
of the Tribunal dated 18.12.2003 in O.A. No.553/2003 titled R.K.
Sharma & Ors. v. Union of India and in O.A. No.2587/2005 titled
Shama Kaul & Ors. v. Union of India. A direction was also
sought to re-fix the applicants‟ pensionary benefits with all
consequential monetary benefits.
3. When the Fourth Pay Commission Report was accepted by
the Government and implemented, in terms of para 11.45 of the
Fourth Pay Commission Report, the Department of Electronics set up
the Seshagiri Committee to examine and suggest the re-organization
of the existing EDP posts and to prescribe uniform pay scales and
designations in all the departments of the Government of India.
Taking the Seshagiri Committee Report into account, Government of
India, Ministry of Finance, Department of Expenditure issued an
office memorandum (OM) dated 11.09.1989, thereby introducing the
pay structure for the EDP posts. The pay structure introduced by the
government was as follows:
"S. Designation of Post Pay Scale
No.
Data Entry Operators
1. Data Entry Operator Rs.1150- This will be entry
Grade „A‟ 1500 Grade for Higher
Secondary with
knowledge of Data
Entry work.
2. Data Entry Operator Rs.1350- This will be entry
Grade „B‟ 2200 grade for
graduation with
knowledge of Data
Entry work or
promotional Grade
for Data Entry
Operator Grade „A‟.
3. Data Entry Operator Rs.1400- Promotional Grade.
Grade „C‟ 2300
4. Data Entry Operator Rs.1600- Promotional Grade.
Grade „D‟ 2660
5. Data Entry Operator Rs.2000- Promotional Grade.
Grade „E‟ 3500
Data processing/ Programming Staff
1. Data Processing Rs.1600- Entry grade for
Assistant Grade „A‟ 2660 graduates with
Diploma/Certificate
in Computer
application.
2. Data Processing Rs.2000- Promotional Grade.
Assistant Grade „B‟ 3200
3. Programmer Rs.2375- Direct Entry for
3500 holders of Degree I
n Engi (sic) or post-
graduation in
Science/Maths etc.
or post-graduation
in Computer
Application.
OR
By promotion from
Data Processing
Assistant Grade „B‟.
4. Senior Programmer Rs.3000- Promotional
4500 Grade."
4. This OM further provided that all ministries/departments
having EDP posts under their administrative control should review
the designation, pay scale and recruitment qualification of their
posts and revise the same in consultation with their financial
advisories to the extent necessary as per pay structure indicated in
the OM. It further provided that the revised pay scales would be
operative from the date of issuance of the notification by concerned
ministry/department. This OM further provided that the review
suggested would be made only with reference to existing EDP posts
and it will not be necessary to create all the grades in all the
ministries/departments as it would depend on requirement of the
user departments. If the ministries/departments proposed to create
new grades which were not existing at the time of issuance of the
OM, the same was to be done with the approval of the financial
advisories and subject to procedures laid down for the purpose.
5. As noticed hereinabove, the OM dated 11.09.1989
provided that the revised pay scales would be operative from the
date of issuance of the notifications by the concerned
ministry/department. However, this stipulation was modified by
another ministerial communication dated 08.01.1991 of the Ministry
of Defence, whereby the revision of the pay scales of EDP posts was
also prescribed. It was provided by this communication that the
revised pay scales would take effect from 11.09.1989 and the pay of
the existing incumbents would be fixed under FR 23 and FR
22(I)(a)(ii).
6. Various Original Applications were filed before the Tribunal
by the EDP Staff working in different ministries/departments to
challenge the decision to grant the revised pay scales to those
holding EDP posts from 11.09.1989, and not from 01.01.1986 when
the Fourth Pay Commission Report was implemented in respect of all
government employees. The Tribunal upheld the claim of the EDP
employees and granted the revised pay scales from 01.01.1986.
Writ petitions preferred in this Court by the Government were also
dismissed. The decisions relied upon by the petitioners as noticed in
paragraph 2 above are some of them.
7. The Original Applications in question were filed by the
petitioners only in the year 2006 to claim re-fixation of their pay
from 01.01.1986 and, consequently, their pension on the basis of the
earlier decisions of the Tribunal and of this Court. The Tribunal has,
as aforesaid, inter alia, held that the original applications were
barred by limitation. The Tribunal also held that the settled service
position could not be altered and disturbed after the passage of
nearly twenty years at the instance of the petitioners, as it would
create chaos and confusion. The Tribunal rejected the reliance
placed by the petitioners on a host of earlier decisions wherein the
Courts/Tribunal had granted re-fixation of pay from 01.01.1986 as
opposed to 11.09.1989 by concluding that the said decisions/orders
did not lay down any ratio nor constitute binding precedents in law.
Most of them were simply orders containing directions founded upon
earlier orders of the Court/Tribunal. Consequently, the aforesaid
original applications were dismissed by the Tribunal.
8. The submission of learned counsel for the petitioners is
that the original applications filed by the petitioners were not barred
by limitation since the petitioners had been representing to the
respondent to assert their claim. Moreover, from time to time,
various directions/orders had been issued by the Tribunal and by this
Court granting the re-fixation of pay w.e.f. 01.01.1986 which was the
date of implementation of Fourth Pay Commission Report for all
government employees. He submits that only when the petitioners
learnt of the orders passed by the Tribunal and by this Court in other
similar cases, they approached the Tribunal by filing the aforesaid
original applications. He further submits that the Tribunal has
completely disregarded the earlier precedents and decisions while
denying relief to the petitioners. The petitioners are entitled to the
same treatment as their colleagues who had earlier approached the
Tribunal and had been granted relief.
9. Learned counsel for the respondent, on the other hand,
supports the decision of the Tribunal that the original applications
were highly belated and barred by limitation. He also submits that
the Tribunal had rightly distinguished all the decisions cited by the
petitioners, inasmuch as, in those decisions there was no ratio or
principle which could be discerned and applied as a binding
precedent.
10. Mr. Bhardwaj, learned counsel for the respondents, submits
that the claim of the petitioners, in any event, was not justified,
inasmuch as, in the case of these petitioners it was not a case of
mere re-fixation of pay, but a case of introduction/creation of new
pay structure and grades by creating fresh designations on the basis
of experience and educational qualifications. Mr. Bhardwaj does not
dispute that in case of a simplicitor re-fixation on a corresponding
higher pay scales, the writ petitioners would be entitled to notional
fixation of the revised pay w.e.f. 01.01.1986, and consequential re-
fixation of their present pay/pension. He further submits that in
terms of the Seshagiri Committee Report, new posts/grades were
created with higher qualifications and a conscious decision was
taken from time to time to place the eligible employees in the
relevant grades/posts. He submits that in such like cases the re-
fixation of pay, even on a notional basis, could not be preponed to
01.01.1986 mechanically and the revised pay-scales/grades could be
granted only from the dates on which the government took the
conscious decision. In support of this submission, Mr. Bhardwaj
relied on the Supreme Court decision in Union of India and Others
vs. Secretary, Madras, Civil Audit and Accounts Association
and Anr. etc. 1992 (1) SLR 667.
11. We have heard learned counsel for the parties at length.
12. While dealing with the issue of limitation, the Tribunal
relied on Ramesh Chand Sharma etc. v. Udham Singh Kamal
and others JT 1999 (8) SC 289 wherein it had been held that in the
absence of any application under sub-Section (3) of Section 21
praying for condonation of delay, the Tribunal had no jurisdiction to
admit and dispose off the original application on merits. In none of
the three Original Applications, it appears that any application was
filed by the petitioners/applicants to seek condonation of delay in
approaching the Tribunal. The Tribunal also relied on E.
Parmasivan v. Union of India (2003) 12 SCC 270, wherein the
claim of retired officers of MES regarding fixation of pay had been
rejected on the ground of limitation, stating that they should have
raised objections regarding the anomaly when they were in service.
The Tribunal relied on A.P. Steel Rolling Mill Ltd. v. State of
Kerala & Ors. (2007) 2 SCC 725, wherein it had been held that the
benefit of a judgment of a Court is not extended to all cases
automatically. The Court would consider the fact whether the writ
petitioner had chosen to sit over the matter and then wake up after
the decision of the Court in some other matter. It was further held
that if the applicant approached the Court after a long delay, the
same may disentitle him to obtain discretionary relief. In S.S.
Rathore v. State of M.P. 1989 (7) SLR 449, it had been held that
repeated unsuccessful representations, not provided by law, would
not extend the period of limitation. In these cases the
representations were also made highly belatedly in the years 2005
and 2006 as noted by the Tribunal in para 29 of the impugned
orders. In Union of India & Ors. v. O.P. Saxena JT 1997 (6) SC
586, the Supreme Court held that the Original Application filed by
the applications in July, 1991 in respect of the claim for stepping up
of the applicants‟ salary, who had retired on 31.03.1988 was highly
belated.
13. Merely because others had approached the Tribunal and
this Court to seek re-fixation of their pay w.e.f. 01.01.1986 earlier,
and had succeeded in their endeavour, would not entitle the
petitioners to seek the same relief at this highly belated stage. We
may refer the Supreme Court in S.S. Balu & Anr. v. State of
Kerala & Ors. VIII-2009(2) All India Services Law Journal 480,
wherein the Supreme Court has held as follows:
"18. It is also well settled principle of law
that "delay defeats equity". Government
Order was issued on 15.1.2002. Appellants
did not file any writ application questioning
the legality and validity thereof. Only after
the writ petitions filed by others were
allowed and State of Kerala preferred an
appeal there against, they impleaded
themselves as party respondents. It is now a
trite law that where the writ petitioner
approaches the High Court after a long
delay, reliefs prayed for may be denied to
them on the ground of delay and laches
irrespective of the fact that they are similarly
situated to the other candidates who obtain
the benefit of the judgment. It is, thus, not
possible for us to issue any direction to the
State of Kerala or the Commission to appoint
the appellants at this stage."
[Also see Shri Gian Singh Mann v. The
High Court of Punjab and Haryana and
another 1980 (3) SLR 18].
14. Though we are in agreement with the finding of the
Tribunal that the writ petitioners could not have prayed for arrears of
pay and allowances and even pension (in respect of those of the
petitioners, who have since retired) by filing the Original Applications
highly belatedly, in our view the Tribunal has failed to appreciate
that the cause of action in these cases was a continuing cause of
action, inasmuch as, the right to receive the pay/pension accrues
each month. The Tribunal, in our view, ought to have applied the
ratio of the Supreme Court decision in M.R. Gupta v. Union of
India & Ors. AIR 1996 SC 669 wherein it held as follows:
"5. ................... The appellant's grievance
that his pay fixation was not in accordance
with the rules, was the assertion of a
continuing wrong against him which gave
rise to a recurring cause of action each time
he was paid a salary which was not
computed in accordance with the rules. So
long as the appellant is in service, a fresh
cause of action arises every month when he
is paid his monthly salary on the basis of a
wrong computation made contrary to rules.
It is no doubt true that it the appellant's
claim is found correct on merits, he would be
entitled to be paid according to the properly
fixed pay scale in the future and the
question of limitation would arise for
recovery of the arrears for the past period. In
other words, the appellant's claim, if any, for
recovery of arrears calculated on the basis of
difference in the pay which has become time
barred would not be recoverable, but he
would be entitled to proper fixation of his
pay in accordance with rules and to
cessation of a continuing wrong if on merits
his claim is justified. Similarly, any other
consequential relief claimed by him, such as,
promotion etc. would also be subject to the
defence of laches etc. to disentitle him to
those reliefs. The pay fixation can be made
only on the basis of the situation existing on
1.8.1978 without taking into account any
other consequential relief which may be
barred by his laches and the bar of
limitation. It is to this limited extent of
proper pay fixation the application cannot be
treated as time barred since it is based on a
recurring cause of action.
6. The Tribunal misdirected itself when it
treated the appellant's claim as 'one time
action' meaning thereby that it was not a
continuing wrong based on a recurring cause
of action. The claim to be paid the correct
salary computed on the basis of proper pay
fixation, is a right which subsists during the
entire tenure of service and can be exercised
at the time of each payment of the salary
when the employee is entitled to salary
computed correctly in accordance with the
rules. This right of a Government servant to
be paid the correct salary throughout his
tenure according to computation made in
accordance with rules, is akin to the right of
redemption which is an incident of a
subsisting mortgage and subsists so long as
the mortgage itself subsists, unless the
equity of redemption is extinguished. It is
settled that the right of redemption is of this
kind. (See Thota China Subba Rao and Ors.
v. Mattapalli Raju, AIR 1950 Federal Court
1)."
15. The claim for re-fixation of pay from 01.01.1986, even if
granted to the petitioners, would not entitle them to claim arrears of
pay and pension. The re-fixation would be notional, and the right to
receive arrears could, at best, relate to the period of one year before
the date of filing of the Original Applications and not before that
date. Since the revision of the petitioners‟ pay, if granted, would
impact their respective salaries/pensions presently being drawn by
them, in our view, on a combined reading of the aforesaid decisions
relied upon by the respondents with M.R. Gupta (supra), it can be
said that the Original Applications filed by the individual applicants
were barred by limitation in so far as the claim for arrears of
pay/pension beyond the period of one year prior to the date of filing
of the Original Applications were concerned.
16. We now proceed to consider the submission of the parties
with regard to the claim of the petitioners that they would be
entitled to re-fixation of pay, re-designation and upgradation from
01.01.1986 in all situations, irrespective of when the posts were re-
designated and/or upgraded. We have gone through the aforesaid
decision in The Secretary, Madras Civil Audit & Accounts
Association and Anr. Etc. (supra). In our view the ratio of this
decision squarely applies to the petitioners‟ case. Since this is a
detailed decision of the Supreme Court, in our view, it would be a
futile exercise to undertake the analysis of the other decisions relied
upon by the petitioners.
17. We now proceed to deal with the same. The Comptroller &
Auditor General of India (C.A.G.) recommended some time in 1983 to
the Government of India to bifurcate the Indian Audit & Accounts
Department (I.A. & A.D.) into two separate and distinct wings, one to
exclusively deal with 'audit' and the other to deal with 'accounts'
with their own separate personnel. The Government of India after
considering all aspects approved the proposal in December, 1983.
Thereafter, C.A.G. formulated a scheme on 19.12.83 for bifurcation
of the I.A. & A.D. into two separate and distinct wings from 1.3.84.
This scheme also provided for all incidental and auxiliary matters
relating to the two wings. Before the restructuring of the cadres, the
staff working in the I.A. & A.D. were asked to exercise their option to
serve in either of the two wings. Some employees exercised the
option.
18. A grievance arose that the various equivalent cadres in
Audit and Accounts Wings were not paid the same scales of pay, and
the persons allotted to the Audit Wing were drawing more pay than
the persons allotted to the Accounts Wing.
19. The Fourth Pay Commission which was looking into various
aspects of the matter recommended in its report that there should
be parity of scales of pay between the two wings. The Government
took the necessary decision on the basis of the recommendations
and the same were published in the Gazette on 13.9.86. The
Government accepted the recommendations relating to the scales of
pay and decided to give effect, from 1.1.86, to the recommendations
of scales of pay for Group 'D' employees. Thereafter Ministry of
Finance, Department of Expenditure issued Office Memo (OM) dated
12.6.87 regarding the posts to be placed in higher scales of pay and
it was mentioned that these orders would take effect from 1.4.87.
20. The employees raised a grievance that the
recommendations of the Fourth Pay Commission should be given
effect from 01.01.1986. Several employees belonging to the
Accounts Wing filed original applications before the Bangalore
Bench, while others moved the Madras Bench of the CAT. Because
of a difference of opinion in the two Benches, a full Bench of the
Tribunal was constituted which took the view that the employees
belonging to the Accounts Branch are entitled to the benefit of
higher pay scales w.e.f. 01.01.1986. The Union of India approached
the Supreme Court and the precise question considered by the
Supreme Court was whether the benefit of O.M. dated 12.06.1987
issued by the Government of India, Ministry of Finance, Department
of Expenditure should be extended to the members of the Accounts
Wing of the I.A. & A.D. w.e.f. 01.01.1986 as in the case of Audit
Wing, or whether it should be with effect from 01.04.1987, as
indicated in the said office memorandum.
21. The Supreme Court extracted Para 11.38 of the Fourth Pay
Commission Report and concluded that there were two
recommendations made by the Pay Commission namely :
1. That there should be broad parity in the pay scales of the
staff in the I.A. & A.D. and other accounts organizations;
2. The scales of pay of Rs. 1400-2000 and 2000-3200 should
be treated as functional grades requiring promotion as per
normal procedure. The number of posts to be placed in the
said scales was to be decided by the Government.
22. The Supreme Court noticed that so far as the first
recommendation was concerned, there was no dispute about the
same. However, in respect of the second recommendation the
Supreme Court observed that to implement the said
recommendation, the Government would have to take specific
decisions to give effect to the same, from a suitable date keeping in
view of all the relevant aspects. Accordingly, the Government had
to examine and decide the number of posts to be placed in these
scales of pay and to take a final decision, which was taken in the
year 1987, whereafter promotions were to be made as per normal
procedure.
23. The full Bench of the Tribunal had interpreted the
recommendations of the Pay Commission to mean that both the
wings would not only get the revised scales of pay but that they
would also get the same from the same date. The Tribunal had held
that the office memorandum dated 12.06.1987 was violative of
Article 14 of the Constitution of India.
24. The Supreme Court, however, did not agree with this view
of the Tribunal. In para 4, the Supreme Court held as follows:
"In the instant case the question is whether
there was apparent reason to give different
dates of implementation of the
recommendations of the Pay Commission in
respect of the members of the Accounts
Wing and whether such an implementation
offends Articles 14 and 16 in any manner? It
is not in dispute that after the report of the
Pay Commission the Government considered
the matter and accepted the substantial part
of the recommendations and gave effect to
the revised scales of pay with effect from
1.1.86. It is clearly indicated in the
report that in regard to
recommendations in other matters the
Government will have to take specific
decisions to give effect to them from a
suitable date keeping in view all the
relevant aspects including the
administrative and accounting work.
The second part of the
recommendations relates to treatment
of scales of pay of Rs. 1400-2000 and
Rs.2000-3200 as functional grades
requiring promotion as per normal
procedure and also the number of posts
to be placed in these scales of pay.
These recommendations clearly fall in the
category of other recommendations and the
Pay Commission itself has indicated that in
respect of such recommendations the
Government will have to take specific
decisions to give effect from a suitable date.
The Government, therefore, had to take
the decision in respect of number of
posts to be placed in these scales of
pay. In this context it is relevant to refer to
paragraph 4 of the Office Memo dated
12.6.87. It reads as under:
"(4) The question regarding number of
posts to be placed in the higher scales
of pay has been under the
consideration of the Government and it
has now been decided that the ratio of
number of posts in higher and lower
scales in the Organised Accounts
cadres as well as in Accounts Wing of
the IA & AD may be as follows:
(i) Section Officer (SG) Rs.2000-60-2300-EB-75- 80%
(ii) Section Officer Rs.l640-60-2600-EB-75- 20%
(iii) Senior Accountant Rs. l400-40-1600-50-2300- 80%
EB-60-2600
(iv) Junior Accountant Rs.l200-30-1560-EB-40- 20%
The designations in different
Organised Accounts cadres may be
different. In such cases also the pay
structure on these lines may be
decided."
The Government have to necessarily
frame rules for appointment to these
functional grades and the Government
decided that those who have passed
the Graduate examination and who
have completed three years as Section
Officer could be placed in the category
of the persons entitled to the scale of
pay of Rs. 2000-3200 and the same post
was redesignated as Assistant Accounts
Officer which post was not there
previously. A Circular dated 17.8.87
makes this aspect clear. It can be seen
that the category of officers who have
to be placed in the functional grade had
to be decided by the Government and
accordingly the Government took the
decision in the year 1987. Therefore it
is not correct to say that these officers
who were subsequently placed in the
functional grade belong to the same
group who were entitled to the
respective scales in their own right on
1.1.86 itself. It must be borne in mind
that in order to enable the
identification of posts and fitment of
proper persons against them the
Government had to take a decision. We
have already noted that the
recommendations of the Pay Commission
deal with parity of scales of pay of the staff
in I.A. & A.D. and other Accounts
Organisations after holding that Audit and
Accounts wings functions are
complementary. But the Pay Commission
also pointed out that the posts in the scales
of pay of Rs.1400-2000 and Rs.2000-3200
should be treated as functional grades
requiring promotion as per normal procedure
and it was left to the Government to decide
about the number of posts to be placed in
these scales. Paragraph 4 of the Office
Memo dated 12.6.87 deals with the later part
of the recommendations and clearly provides
for the identification of the posts carrying
somewhat higher responsibilities and duties
and for an exercise to be undertaken for
fitting the senior and suitable persons
against these posts. The Government after
due consideration decided the issue. The
Circular dated 17.8.87 clearly shows that
some of the posts are identified as belonging
to the higher functional grade and
accordingly issued instructions in conformity
with its Office Memo dated 12.6.87 and
accordingly they were given the benefit with
effect from 1.4.87." (emphasis supplied)
25. The Supreme Court in Para 9 and 10 further held as
follows:
"9. Having given our earnest consideration
we are unable to agree with the view taken
by the Full Bench of CAT that the principle of
equal pay for equal work is attracted
irrespective of the fact that the posts were
identified and upgraded in the year 1987.
There is no dispute that after such up
gradation, officers in both the wings who are
doing the equal work are being paid equal
pay. But that cannot be said to be the
situation as well on 1.1.86 also...................
10. There is no dispute that in the instant
case the terms of reference of Pay
Commission applied to all the categories of
Government servants. But the question is as
to from which date the other category
referred to above namely Assistant Accounts
Officer etc. should get the higher scales of
pay. Identification of these posts and the up
gradation cannot be treated as mere
administrative difficulties. The
implementation of the recommendations of
the Pay Commission according to the terms
thereof itself involved this exercise of
creation of posts after identification which
naturally took some time. Therefore the
above decisions relied upon by the learned
Counsel are of no help to the respondents."
26. In our view the ratio of aforesaid decision of the Supreme
Court would be applicable in respect of the aforesaid office
memoranda/communications, inasmuch as, by these office
memoranda/communications, apart from providing mere re-fixation
of pay-scales, higher grades/pay-scales and posts have been
created/re-designated for which higher qualifications and
experiences have been prescribed by a conscious decision, and the
process of grant of the higher grades/re-designation involves a
process of assessment of the candidates. The posts with higher
designations did not even exist as on 01.01.1986 and none of the
petitioners were occupying these higher designated posts as on that
day or even thereafter, till well after 11.09.1989, if at all. They
possibly could not have got the higher grades from 01.01.1989 or
from any date prior to 11.09.1989. They would not have got the
higher grades even from 11.09.1989, but for the governmental
decision taken subsequently, to grant the higher grades from
11.09.1989.
27. Reliance placed by the petitioners on Chandraprakash
Madhavrao Dadwa Vs. UOI & Others, (1998) 8 SCC 154 was also
negated by the Tribunal by a detailed analysis. We reproduce the
relevant extract from the impugned order wherein the Tribunal
noted some relevant facts and analyzed the decision of the Supreme
Court in the case of Dadwa (supra).
"7. Ministry of Defence, based on
aforesaid Memorandum dated 11.09.1989,
issued OM dated 08.01.1991 conveying
President sanctioned for revision of pay scale
of various posts enumerated therein in
AFHQ/ISO. Statistical Assistants in AFFQ/ISO
carrying pay scale of Rs.1400-2300/- was
designated as Data Entry Operator Grade „D‟
in revised pay scale of Rs.1600-2600/-, to
take effect from 11.09.1989. In continuation
of aforementioned OM, Ministry of Defence,
Office of JS (Trg), CAO issued further
communication dt. 6.12.1994 conveying
President sanctioned: "to the placement/
promotion of the incumbents of the
posts of Computer, Senior Computer,
Statistical Assistant, Statistical
Investigator and Programme Assistant"
in different grades of EDP discipline subject
to certain conditions contained in enclosed
Annexure-I. As per said Annexure-I, under
column 4, Statistical Assistants of AFHQ/ISOs
earlier carrying pay scale of Rs.1400-2300/-
were allowed revised scale of Rs.2000-3200/-
, with designation of DPA Grade-B, with
certain educational qualifications. Graduates
in Science/ Maths/ Statistics/Economics
subjects and having a certificate in
Computer Programming were to be placed in
pay scale of Rs.2000-3200/- with designation
DPA Grade-C while those not possessing said
qualifications were to be placed in pay scale
of Rs.1600-2660/- and designated as DPA
Grade „A‟.
8. Ministry of Planning, Department of
Statistics also issued order dated 2.07.1990
and conveyed President sanction to revision
of designation and pay of Grades „C‟ & „D‟ of
EDP posts w.e.f. 11.09.1989 to the following
effect:-
Organisation Present Present Revised Revised
Designation Scale Designation Scale
(1) (2) (3) (4) (5)
Computer Punch Card Rs.950-20- Data Entry Rs.1150-25-
Section Operator 1150-ES-15- Operator 1500
1500+ Spl. Grade „A‟
Pay Rs.40
Industrial Computer (Junior -do- -do- -do-
Statistics (IS) scale)
Wing of CSO,
Calcutta
Field Key Punch -do- -do- -do-
Operators Operator
Division NSSO
Computer Punch Card Rs.1200-30- Data Entry Rs.1350-3-
Centre Supervisor 1400-EB-30- Operator 1440-40-
1800 Grade „B‟ 1800-EB-50-
Computer Data Processing Rs.1200-30- -do- -do-
Centre Assistant/Tape 1560-EB-40-
Librarian 2040
IS Wing of CSO Computer (Senior -do- -do- -do-
at Calcutta Scale)
Data Data Processing Rs.1200-30- Data Entry Rs.1350-3-
Processing Assistant 1560-EB-40- Operator Gr. 1440-40-
Division, NSSO 2040 „B‟ 1800-EB-50-
Computer Junior Programme Rs.1400-40- Data Rs.1600-50-
Centre Assistant 1800-EB-50- Processing 2300-EB-60-
2300 Assistant 2660
IS Wing of CSO Jr. Investigator/ -do- -do- -do-
at Calcutta Console Operator/
Data Processing
Librarian
Data Data Processing Rs.1400-40- -do- -do-
Processing Supervisor 1600-50-
Division, NSSO 2300-EB-60-
Computer Programme Asstt/ Rs.1640-60- Senior Data Rs.2000-60-
Centre Console Operator 2600-EB-75- Processing 2300-EB-75-
2900 Assistant 3200
IS Wing of CSO Sr. Investigator -do- -do- -do-
at Calcutta
Data Superintendent -do- -do- -do-
Processing
Division, NSSO
9. Aforesaid Order dated 2.7.1990 of
Department of Statistics was challenged
before the Mumbai Bench in OA 625/1990,
which was dismissed. Initially SLP filed by
applicants was dismissed by Hon‟ble
Supreme Court at admission stage and later,
on review filed, was allowed in
Chandraprakash Madhavrao Dadwa vs.
Union of India & Ors., 1998 (8) SCC 154.
Challenge to aforesaid Order had done
basically on two accounts:
(i) It challenged the designation of Data
Processing Assistants in the National Sample
Survey Office to Data Entry Operators which
amounted to reversion to an entry grade
below that of Data Processing Assistants to
which they were recruited;
(ii) It changed the designation of certain
other officers in NSSO from Data Processing
Supervisors into Data Processing Assistants.
10. The Hon‟ble Supreme Court noticed
that there have been statutory rules known
as NSSO (DPD, SD & RD) Class III (Non-
Ministerial posts) Recruitment Rules, 1973
which were applicable for recruitment to the
posts of Computer Operator (225 posts),
Machine Operator ( 68 posts) and Key Punch
Operator ( 80 posts) which were in scale of
Rs.130-300 & all these posts were on the
"Data Entry" side. On the other hand, the
NSSO Rules, 1977 were applicable to Data
Processing Assistants in the pay scale of Rs.
330-560. Similarly, 1978 Rules were
applicable to Data Processing Supervisors in
pay-scale of Rs. 425-800. These posts (DPA
& DPS) were in "Data Processing" stream.
Thus there had been distinction between
Data Entry Operators who were governed by
one set of rules of 1973 and Data Processing
Assistants and Supervisors governed by the
1977 and 1978 Rules respectively. Prior to
1978 Rules in NSSO, there was no distinct
cadre styled as the Data Entry Operators as
the Data Entry Operators but there were
Machine Operators, Key Punch Operators
and Computers who were doing Data Entry
work. All these three cadres of employees
doing data entry work got merged into one
common cadre of Data Processing Assistants
from 1977 onwards. IVth Pay Commission
felt that all matters concerning the Data
Entry and Data Processing Staff be decided
by an expert body. Thereafter, a Committee
known as "Dr. Seshagiri Committee" went
into the question of revision of pay scale and
restructuring in various departments of
Government, including NSSO. The said
Committee initially appointed a Sub-
Committee to go into various questions. The
said Sub - Committee gave its significant
directions stating that there should be two
streams- one relating to Data Entry and
another relating to Data Processing. The
Sub-Committee vide Para 9(6) referring to
Data Entry Operators recommended that Key
Punch Operators and Data Entry Operators
are performing work of a repetitive nature
and which does not involve any Science and
Technology content, be classified as Data
Entry Operators and five grades were
recommended for them, namely;
DEO Grade A : Rs. 1350-2200
DEO Grade B : Rs. 1400-2300
DEO Grade C : Rs. 1600-2660
DEO Grade D : Rs. 2000-3200
DEO Grade E : Rs. 2375-3500
respectively.
Further grade of „AA‟ in regard to non-
graduates in the scale of Rs. 1150-1500.
11. Thereafter, the Sub- Committee
referred to „Data Processing Assistants‟ as
well as Programmers and observed that this
work will require intellectual skills, which was
not a routine type and, therefore,
recommended scales and designations,
namely, Data Processing Assistant-„A‟, Rs.
1640-2900 based on certain educational
qualifications and Data Processing Assistant
„B‟, Rs. 2000-3200 on promotion from Data
Processing Assistant A having 5 years
service in the said grade. The said
Committee no where in its report
recommended that in view of slightly
different qualifications fixed for Data
Processing Assistants, those specifically
recruited earlier under statutory rules as
Data Processing Assistants, were to be
dislodged therefrom and be brought into
that Data Entry Stream. Even with regard to
extra qualifications now prescribed,
Committee clearly stated that they should
not be applied to existing staff. Ministry of
Finance issued O.M. dated 11.9.1989
virtually accepting all the recommendations
of Dr. Seshagiri Committee with very slight
modifications.
12. The grievance raised in afore-
mentioned case, namely, C. Madhavrao
Dadwa and Ors had been that the change
in essential qualifications made vide order
dated 2.7.1990 of additional functions now
required to be performed by the appellants
could not retrospectively affect the initially
recruited Data Processing Assistants.
Recruitment qualifications could not be
altered or applied with retrospective effect
so as to deprive the recruitees of their right
to the posts to which they were recruited nor
could it affect their confirmation.
13. Under 1977 Rules for direct
recruitment of Data Processing Assistants
their essential qualification was Degree in
Arts or Commerce with Statistics,
Mathematics as one of the subjects.
Desirable was to have a Computer‟s
certificate or other certificates as specified
therein. Later order dated 2.7.1990
stipulated graduation plus diploma/
certificate in computer application or
knowledge of the system to be evaluated by
tests. After noticing the Rules positions of
1973, 1977 and 1978 & orders dated
11.9.1989, 2.7.1990 as modified on
15.5.1996 as well as 5th Pay Commission
recommendations on the upgradation of pay
scale of DEOs and DPAs, which later resulted
in further order dated 16.3.1998, Hon‟ble
Court allowed the claim laid by the Review
Applicants and observed that:
"To put it in a nutshell, the change in
the essential qualification made in
1990 or 1998 or the additional
functions now required to be
performed by the appellants could not
retrospectively affect the initial
recruitment of appellants as Data
Processing Assistants nor their
confirmation in 1989. Recruitment
qualifications could not be altered or
applied with retrospective effect so as
to deprive the recruitees of their right
to the posts to which they were
recruited nor could it affect their
confirmations".
The Hon‟ble Supreme Court further held
that:
"For all the above reasons, the
impugned orders dated 2.7.90, 16.3.98
and all other orders which have the
effect of redesignating the appellants-
who were recruited as Data Processing
Assistants as Data Entry Operators in
the scale of 1350-2200 (or 1400-2300
by concession of counsel) are arbitrary
and illegal, ultravires and are declared
violative of Articles of 14 and 16 of the
Constitution of India. The appellants
are declared entitled to the
designation of Data Processing
Assistants Grade III (also called earlier
as grade B) in the scale of Rs. 1600-
2660 with effect from1.1.1986, the
date when the IVth Pay Commission
scales came into force. The appellants
are also entitled to the scale of
Rs.5000-8000 with effect from 1.1.96.
In view of the government orders
passed in connection with the Vth Pay
Commission recommendations.
It is made clear that the judgments is
applicable only to those 48 appellants
who are directly recruited as Data
Processing Assistants in the NSSO,
Department of Statistics, Ministry of
Planning." (emphasis supplied)
Perusal of above underlined portion would
show that said judgment was applicable
only to those 48 applicants who were
directly recruited as Data Processing
Assistants in NSSO, Department of Statistics.
14. Later on an I.A. was filed for recalling
order dated 22.1.1997 passed in Review
Petition No. 2094 of 1995 in Special Leave
Petition (Civil) No. 19257 of 1995, known as
Kamlakar & Ors vs. Union of India &
Ors, 1999 (4) SCC 756. Court noticed that
anomalous situation had arisen and some of
the petitioners in OA 625/1990 got relief in
OA Chandra Prakash Madha Rao Dadwa
and Ors and some others were denied the
same relief even though all of them had
been petitioners in the same OA before
Mumbai Bench of this Tribunal. In said I.A.,
Union of India pointed out that among the
appellants, some were direct recruits but
some others were promotees, and that was a
point of some distinction. Therefore, UOI
prayed that direct recruits may be given
relief but not promottees. Rejecting the
same, Hon‟ble Supreme Court vide Para 12
observed that:
"All these appellants should get the
same relief as the appellants in the
Civil Appeal which arose out of SLP No.
16646 of 1995. It was further observed
that "once they were all in one cadre,
the distinction between direct recruits
and promotees disappears at any rate
so far as equal treatment in the same
cadre for payment of the pay scale
given in concerned. The birth marks
have no relevance in this connection.
If any distinction is made on the
question of their right to the post of
Data Processing Assistants they were
holding and to its scale- which were
matters common to all of them before
the impugned order of the
Government of India was issued on
2.7.1990, then any distinction between
Data Processing Assistants who were
direct recruits and those who were
promotes, is not permissible. We,
therefore, reject the respondents'
contention".
(emphasis supplied)"
28. We find no error in the aforesaid analysis of the Tribunal
and we accept the same. Higher grades of pay could not have been
claimed with retrospective effect from 01.01.1986 in cases involving
creation/re-designation of the posts and the fitment of the
incumbents on those posts, as the same required a conscious
governmental decision.
29. We find that the Tribunal while dismissing the aforesaid
applications of the writ petitioners / applicants has not gone into the
issue as to whether their claims for grant of the revised pay scales
w.e.f. 01.01.1986 was based merely on the basis of
refixation/revision of pay scales, or on the basis of re-designation of
posts i.e. creation of posts; upgradation of pay scales, and;
assessment of their respective cases for grant of the higher/revised
grades/pay scales and designations. The grant of the notional relief,
if any, to the individual writ petitioners would depend on the
examination of the aforesaid issue in respect of each of the writ
petitioners.
30. While examining the cases of the petitioners for grant of
the new EDP pay-scales w.e.f. 01.01.1986 and not 11.09.1989, the
decision of the Supreme Court in The Secretary, Madras Civil
Audit & Accounts Association and Anr. Etc. (supra) would have
to be kept in mind and the revised pay-scales cannot be claimed by
those who are placed in the higher grades/redesignated posts as a
result of their fitment in those posts on account of their higher
experiences and educational qualifications and on the basis of their
assessment on merit.
31. Consequently we partly allow these petitions and remand
these cases back to the Tribunal to examine each of the cases in the
light of our aforesaid observations and in the light of the decision of
the Supreme Court in The Secretary, Madras Civil Audit &
Accounts Association and Anr. Etc. (supra), and if the writ
petitioners/applicants are found so entitled, to grant them notional
re-fixation of pay from the appropriate dates and actual re-fixation of
pay / pension along with arrears from the period beginning one year
before the filing of the original applications by each of the writ
petitioners.
32. With the aforesaid directions we dispose off these writ
petitions leaving the parties to bear their respective costs.
VIPIN SANGHI, J.
DECEMBER 11, 2009 ANIL KUMAR, J.
rsk/dp
