Union Of India & Others vs Om Prakash & Others
2010 Latest Caselaw 2213 Del

.               IN THE HIGH COURT OF DELHI AT NEW DELHI
*
+                              WP(C) No.2824/2010

%                           Date of Decision: 27.04.2010

Union of India & others                              .... Petitioners
                   Through Mr.Sameer Agarwal, Advocate.

                                    Versus

Om Prakash & others                                      .... Respondents
                                  Mr.M.A.Chinnasamy, Advocate for
Through                           respondent Nos.1 to 8.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.    Whether reporters of Local papers may be             YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?               NO
3.    Whether the judgment should be reported              NO
      in the Digest?



ANIL KUMAR, J.

*

The petitioner, Union of India & others, has impugned the order

dated 24th August, 2009 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in O.A.No.1905 of 2008, titled as 'Sh.Om

Prakash & others v. Union of India & others', setting aside the order

dated 1st July, 2008 whereby the decision of the Tribunal in case of

other similarly placed person was not extended to the respondents and

directing the petitioners to grant the respondents the scale of pay of

Rs.55,00-9,000/- w.e.f. 1st January, 1996 with all the consequential

benefits.

The respondents have sought a pay scale which had already been

accorded to the similarly placed employees as respondents in the matter

of 'CNG Pillai & another v. Union of India & others' in O.A.No.997 of

2001 decided on 2nd December, 2002 State Administrative Tribunal,

Ernakulam.

This is not disputed by the learned counsel for the petitioners

that a writ petition was filed against the order dated 2nd December,

2002 passed in O.A.No.997 of 2001, titled as 'CNG Pillai & another v.

Union of India & others', which was also dismissed by the High Court of

Kerla at Ernakulam in W.P.(C) No.19797 of 2003, by the order dated 2nd

August, 2005. A special leave petition was also filed by the petitioners

which had also been dismissed.

The learned counsel for the petitioners has very emphatically

contended that though the Tribunal at Ernakulam Bench in O.A.No.997

of 2001 by its order dated 2nd December, 2002 has laid emphasis on the

grant of scale of pay of Rs.5500-9,000/-to Accountant in various

Ministries/Departments of the Government of India for giving a similar

treatment in the said case, however, as per the clarificatory stand of

Ministry of Finance, the competent authority for these matters have

limited orders to the Organized Accounts Cadre which by their very

nature of functions discharge more onerous duty and are subject to

some vigorous tests for promotion (viz. SAS qualifying test). According

to him, since the respondents do not belong to Organized Account

Cadre, no case for discrimination could be made out. It has also

contended that the posts of Accountants in question which the

respondents hold do not belong to any Organized Accounts Cadre,

therefore, the same is not covered by the order of the Tribunal at

Ernakulam Bench, which was confirmed by the High Court of Kerla at

Ernakulam, and the order of the High Court of Kerla at Ernakulam was

confirmed by the Supreme Court of India by dismissing the Special

Leave Petition. It has also asserted that extending an identical scale to

the Accountants will mean promotional and feeder posts getting into

identical scale, which could not be justified. The learned counsel for the

petitioner has also placed reliance on (2009) 12 SCC 231, 'Haryana

State Electricity Board & another v. Gulshan Rai & others' holding that

equality is a positive concept and benefit of a wrong judgment, even if it

has become final and has been implemented, cannot be claimed by

others as a right. In the circumstances, it is contended that the

judgment of the Central Administrative Tribunal at Ernakulam Bench is

a wrong judgment and on the basis of the same, the respondents

cannot claim equality.

The Tribunal has held that the respondents are placed in similar

circumstances as the applicants were in the case of 'CNG Pillai &

another (Supra). The learned counsel is, however, unable to show any

such facts from which it can be inferred that the respondents are not

performing more onerous duty as alleged in case of the Organized

Accounts Cadre. No facts have been disclosed by the petitioners as to

how the alleged Organized Accounts Cadre is subjected to more

vigorous tests for promotion. Merely on the basis of bald allegation, the

distinction has been allegedly carved out by the petitioners which is not

apparent and cannot be accepted. In 'CNG Pillai & another (Supra), it

was held that Accountants exercise supervisory functions, and

therefore, they are appointed as Accountants after passing qualifying

test. It was also noticed that Ministry of Urban Development in the

recommendation pursuant to 5th Pay Commission had observed that

those who exercise supervisory functions should be placed in the pay

scale of Rs.1640-2900/-, and consequently, the accountants who

exercise supervisory functions were placed in the pay scale of Rs.5500-

9000/-.

The learned counsel for the petitioners is unable to deny that the

respondents do not perform or exercise supervisory functions, and if

that be so, they are entitled to the scale of Rs.5500-9000/-. Merely on

the basis of bald allegation of the petitioners that the respondents do

not belong to Organized Accounts Cadre and they are not entitled to

scale of Rs.5500-9000/-, this plea cannot be accepted. In the

circumstances, the plea of the petitioners that the ratio of the decision

of Central Administrative Tribunal at Ernakulam Bench will not be of

any assistance to the respondents cannot be accepted, nor it can be

inferred that the decision of Central Administrative Tribunal at

Ernakulam Bench which was approved by the High Court of Kerla at

Ernakulam and the Special Leave Petition filed against the decision of

the High Court of Kerla at Ernakulam, is a wrong judgment and on the

basis of same parity could not be claimed by the respondents.

Haryana State Electricity Board & another (Supra), relied by the

petitioners is also distinguishable. It was held by the Supreme Court

that it was not permissible in law to give 2/3/4 promotions in the name

of equality for holding a public office without an employee passing the

requisite qualification, and in absence of the prescribed requisite

qualification, reliefs sought could not be granted on the basis of

judgment passed in earlier cases. It was held that conditions of service

of employees are governed by the statutory provisions and any relief

granted contrary to the statutory provisions could not be claimed on the

doctrine of equality as envisaged under Article 14 of the Constitution. In

contradistinction in the case of the respondents, it cannot be held that

they are not discharging supervisory function which was the basis of

granting the scale of Rs.5500-9000/- pursuant to the recommendations

regarding the pay scale to the Accountants in the Ministry of Urban

Development. The relief granted by the State Administrative Tribunal,

Ernakulam was not contrary to any statuary rules or could not be

granted under law and therefore, the petitioner cannot apply the ratio of

Haryana State Electricity Board & another (Supra) in the case of

respondents.

The High Court of Kerla at Ernakulam in the writ petition against

the order of Central Administrative Tribunal at Ernakulam Bench had

also held that there was sufficient justification for the Tribunal to

confirm something which was legal & just, and in the circumstances,

the plea of the petitioners' counsel that the decision of the Tribunal at

Ernakulam Bench was a wrong judgment, cannot be accepted, and

consequently, it cannot be held that the respondents who are similarly

placed shall not be entitled for the benefits.

Learned counsel for the petitioners is also unable to show on the

basis of any facts that extending scale of Rs.5500-9000/- to the

Accountantw will mean promotional and feeder post will be in identical

scale. Except the bald allegation, no facts have been disclosed by the

petitioners which can substantiate their pleas.

In the circumstances, this Court does not find any illegality,

irregularity or any such perversity in the order of the Tribunal dated

24th August, 2009 directing the petitioners to grant the respondents

scale of pay of Rs.5500-9000/- w.e.f. 1st January, 1996 so as to

necessitate any interference by this Court in exercise of its jurisdiction

under Article 226 of the Constitution of India.

The writ petition in the facts and circumstances is without any

merit, and therefore, it is dismissed.

ANIL KUMAR, J.

APRIL 27, 2010                                    MOOL CHAND GARG, J.
'VK'