Madhu Bhatia & Ors. vs Union Of India & Ors.
2009 Latest Caselaw 4389 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. (C.) No.5556/2007

%                      Date of Decision: 29.10.2009

      MADHU BHATIA & ORS.                             .... Petitioners

                       Through: Mr. A.K. Sharma, Advocate

                                 Versus

      UNION OF INDIA & ORS.                            .... Respondents

                       Through: Mr. V.S.R. Krishna and Mr. Jitendra
                                Kumar Singh, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.   Whether reporters of Local papers may be                 No.
     allowed to see the judgment?

2.   To be referred to the reporter or not?                   No.
3.   Whether the judgment should be reported in               No.
     the Digest?


VIPIN SANGHI, J.

*

1. By this writ petition filed under Article 226 of the Constitution

of India, the petitioners impugned the order dated 15.05.2007 passed

by the Central Administrative Tribunal, Principal Bench, New Delhi in

O.A. No.1079/2006 and M.A. No.521/2007. By the impugned order, the

Tribunal has dismissed the aforesaid Original Application filed by the

petitioners. The claim of the petitioners in the Original Application was

to seek direction for grant of revised pay scale of Rs.5000-8000/5500-

9000 w.e.f. 01.01.1996 i.e. upon the implementation of the Fifth

Central Pay Commission Report with all consequential benefits.

2. The petitioners were appointed on ad hoc basis as Assistant

Mistress i.e. primary school teachers for junior school in the scale of

Rs.1400-2300 between 01.02.1990 and 03.08.1995 to serve in the Oak

Grove School, Jharipani, Distt. Dehradun, Uttarakhand. The

qualification requirement for the said post as advertised by the

respondent was: (i) second class graduate; (ii) decree/diploma in

education/teaching of four years, integrated two years post graduate

course of regional college of education of NCERT.

3. On the implementation of the Fifth Central Pay Commission

Report, w.e.f. 01.01.1996 the scales of pay of primary school teachers

working in Railway schools all over India was revised as under:

                                  "Before 1.1.1996       After 1.1.1996

            (i)   Entry Scale       Rs.1200-2040         Rs.4500-7000

            (ii) Senior Scale       Rs.1400-2600         Rs.5500-7000

            (iii) Selection         Rs.1640-2900        Rs.6500-10500"
                  Grade

4. The General Manager, Northern Railway, Baroda House, New

Delhi recommended that the Assistant Mistress of the Oak Grove

School be granted pay scale of Rs.5000-8000/5500-9000. This

proposal was sent to the Railway Board but the same was turned down

by it. Consequently, the petitioners were granted revised pay scale of

Rs.4500-7000.

5. The petitioners were dissatisfied with this decision of the

Railway Board. Consequently, the petitioners preferred O.A.

No.2042/2005, which was disposed off on 16.09.2005 with a direction

to respondent No.2 to dispose off the petitioners' representation. The

respondent's then passed an order dated 28.10.2005 rejecting the

claim of the petitioners.

6. The petitioners then preferred O.A. No.1079/2005 which has

been dismissed by the impugned order. The grievance of the

petitioners was that historically the scales of pay at the primary school

teachers/Assistant Mistresses appointed at Oak Grove School, which is

a boarding school having small children, have been higher than the

scales of pay granted to primary school teachers working in other

railway schools. Even their educational qualifications are higher than

the educational qualifications prescribed for primary school teachers in

other railway schools. It was argued that by granting the same revised

pay scale to the petitioners, as granted to other primary school

teachers of the railways, the petitioners have been discriminated as

unequals have been equated.

7. Before the Tribunal, the stand taken by the respondent was

that the scales of pay of teachers in other schools of the railways were

different from those prevalent in the Oak Grove School. To remove the

discrepancy the new uniform scales had been implemented.

Consequently, the Assistant Mistress of Oak Grove School, who earlier

enjoyed a higher pay scale when compared to other primary school

teachers of railways, were brought at par with all other similar ranked

teachers. The respondents also contended that the higher grade

earlier being enjoyed by Assistant Mistresses of Oak Grove School was

a mistake which had occurred inadvertently and this mistake was

corrected upon the implementation of the Fifth Central Pay

Commission Report.

8. The Tribunal while rejecting the petitioners' Original

Application took note of the fact that the Railway Board in its order

dated 28.10.2005 had brought the higher pay scales given to the

Assistant Mistresses of Oak Grove School exclusively, in line with those

of other railway primary school teachers. The Tribunal observed that

the said action had been taken by expert bodies, by taking an overall

view within the railways and that the Tribunal would not sit in

judgment over why the pay commission has acted in a particular

manner. The submission of the petitioners that their qualifications,

duties and responsibilities were different from the teachers in the same

category i.e. primary school teachers in other railway schools was also

not gone into, as the petitioners were being paid special pay of

Rs.200/- per month in recognition of the nature of their responsibility of

handling young children in a boarding school environment.

9. Learned counsel for the petitioners submits that the

qualification prescribed for the Assistant Mistress for the Oak Grove

School were higher than those prescribed for Assistant

Teachers/Primary School Teachers (PST) in other railway schools. At

the time of their recruitment the petitioners were granted the higher

pay scale of Rs.1400-2300 as compared to PST/Assistant Teachers

recruited in other railway schools. The entry scale of primary school

teachers in other railway schools prior to the implementation of the

Fifth Pay Commission report was Rs.1200-2040, whereas the

petitioners had been inducted in pay scale of Rs.1400-2300. Learned

counsel for the petitioners submits that this distinction was in

recognition of the fact that the nature of responsibilities of the

petitioners was much higher when compared to the other primary

school teachers in day schools of the railways. Learned counsel for the

petitioners had referred to the Railway Services (Revised Pay) Rules

1997, wherein, in Annexure B, the revised pay scales of certain

specified categories of staff have been enumerated. In respect of

teaching staff (railway schools) the pre-existing pay scales and the

revised pay scales as provided by the Fifth Central Pay Commission

Report have been prescribed and the same, in so far as they are

relevant, read as follows:

             "Sl.          Post            Present Scale        Revised Scale
             No.
             11.2      Teaching Staff (Railway Schools)
              (a)      Primary School Teacher
              (i)      Entry Scale        1200-30-1560-        4500-125-7000

              (ii)     Senior Scale       1400-40-1600-50- 5500-150-8000
                                          2300-60-2600
              (iii)    Selection          1640-60-2600-75- 5500-175-9000
                       Scale              2900
              (b)      Trained   Graduate           Teacher/Head        Master,
                       Primary School
              (i)      Entry Scale        1400-40-1600-50-       5500-175-
                                          2300-60-2600           9000
              (ii)     ...................            ......................               ...................."



10.      Learned       counsel     for   the   petitioners   submits   that    the

petitioners, though recruited as primary school teachers were given

the entry scale of TGT/Headmaster Primary School. Consequently, the

revised pay scale of the petitioners, upon implementation of the Fifth

Central Pay Commission Report should be Rs.5500-8000/Rs.5500-9000

and not Rs.4500-7000.

11. On the other hand, learned counsel for the respondent

submits that it is not within the jurisdiction of this Court to fix the pay

of the petitioners, as fixation of pay and determination of parity in

duties is the function of the Executive. In support of this submission,

learned counsel for the respondent has placed reliance on State of

Haryana & Anr. V. Haryana Civil Secretarial Personal Staff

Association (2002) 6 SCC 72 and Union of India & Anr. V. P.V.

Hariharan & Anr. (1997) 3 SCC 568.

12. Learned counsel for the respondent argues that unless a clear

case of hostile discrimination is made out, there should be no judicial

interference with the pay scale fixed by the Government on the

recommendation of the Pay Commission. Learned counsel for the

respondent has also drawn our attention to Annexure-A to the

aforesaid Rules. He submits that two different scales falling within

scale No.S-8 have been merged into one revised scale under the Fifth

Central Pay Commission Report. The relevant entry of Annexure-A

reads as follows:

            "Sl.    Scale     Present Scale (Rs.)          Revised Scale
            No.     No.                                    (Rs.)

              8.    S-8      (a) 1,350-30-1,440-
                                 40-1,800-50-2,200         4,500-125-7,000"
                             (b) 1,400-40-1,800-
                                 50-2,300"


              9.    S-9      (a) 1,400-40-1,600-
                                 50-2,300-60-2,600         5,000-150-8,000"
                             (b) 1,600-50, 2,300-
                                 60-2,600

13. He submits that the pay scale of Rs.1400-2300 earlier fell

within scale No.S-8, whereas the pay scale of Rs.1400-2600 fell within

the scale No.S-9. The petitioners are seeking to mislead this Court by

claiming that they had been granted the senior scale upon their entry,

as the senior scale of the Primary School Teachers is Rs.1400-2600 and

not as Rs.1400-2300 as granted to the petitioners on their entry as

Primary School Teachers/Assistant Mistresses.

14. Having heard learned counsels of the parties, we are of the

view that there is no merit in this petition and the same deserves to be

dismissed. The prescription of higher qualification for the posts of

Assistant Mistress at the Oak Grove School in our view is of no

relevance to determine the revised pay scales to which the petitioners

would be entitled upon the implementation of the Fifth Central Pay

Commission Report. The petitioners were recruited as Assistant

Mistresses, which is the post of a Primary School Teacher. Merely

because they may have possessed the qualification which is otherwise

prescribed for a Trained Graduate Teacher (TGT), does not entitle them

to claim the same pay scale as is prescribed for a TGT. The pay scale

granted to the petitioners upon their entry was Rs.1400-2300.

Assuming for the sake of arguments that the same was consciously

granted by the respondent and that the same was not a mere error,

inasmuch as, the said position continued for many years. This also

would not make the subsequent action of the respondent illegal nor

would entitle the petitioner to claim the scale of TGT.

15. The revised pay scale granted under the Fifth Central Pay

Commission Report to the Primary School Teachers have been

reproduced above. The entry scale in the pre-revised scale was

Rs.1200-2040. The petitioners were, however, granted the pre-revised

entry scale of Rs.1400-2300. The senior scale of Primary School

Teachers was Rs.1400-2600. The petitioners, admittedly, were not

given the pre-revised senior scale, as they were given the scale of

Rs.1400-2300. Therefore, the endeavour of the petitioners to seek

refixation in the pay scale of Rs.5500-8000, which is the revised pay

scale for the Primary School Teachers in the pre-revised senior scale of

Rs.1400-2600, could not be granted.

16. The real grievance of the petitioners appears to be that earlier

the Primary School Teachers at Oak Grove School were receiving

higher pay scales when compared to other Primary School Teachers of

the railways working at other schools. Now, after implementation of

the Fifth Central Pay Commission Report that distinction no longer

survives and the Primary School Teachers of other railway schools

have also been granted the same pay scales as the petitioners. This

grievance of the petitioners, in our view, is not justified for two

reasons. Firstly, it is not that the pay scales of the petitioners have

been reduced. The pay scales now granted to the petitioners i.e.

Rs.4500-7000 is also an upward revision from the earlier granted pay

scale of Rs.1400-2300. Secondly, in recognition of the special duties

performed by the petitioners they are being paid special pay of

Rs.200/-.

17. In our view, the Tribunal has correctly concluded that it is not

for the Courts to interfere with aspects relating to revision/fixation of

pay scales, as it is primarily the function of the Executive. The Courts

would not interfere with such an exercise conducted by the Executive

unless it is seen to be discriminatory or patently illegal. In our view,

the petitioners have failed to make out a case of illegality or hostile

discrimination. We find no error in the order passed by the Tribunal.

The same does not call for interference by us in writ jurisdiction.

18. Dismissed. Parties to bear their own costs.

(VIPIN SANGHI) JUDGE

(ANIL KUMAR) JUDGE OCTOBER 29, 2009 rsk