Delhi High Court
Dtc Engineers Association ... vs D.T.C. & Others on 23 February, 2010
Author: Mool Chand Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No. 1134/2010
% Date of Decision: 23.02.2010
DTC ENGINEERS ASSOCIATION (REGD.) .... PETITIONER
Through Mr. Vinay Kumar Garg, Advocate
Versus
D.T.C. & OTHERS ....RESPONDENTS
Through Mrs. Avnish Ahlawat, Ms. Latika
Chaudhary, Advocates for the
respondent/DTC.
Ms. Parul Sharma, Advocate for Mr.
V.K. Tandon, Advocate for respondents
No.2, 3 and 4.
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 in No
the Digest?
MOOL CHAND GARG, J.
*
1. The petitioner association represents the Assistant Foreman
working with respondent No.1/DTC, who were given pay scale of Rs.
1400-2300 at the time of 4th Pay Commission. They claim pay scale of
Rs.5000-8000 as replacement pay scale after coming into force of the
recommendations of the 5th Pay Commission. It is submitted that the
pay scale made admissible to them on the basis of decision taken by the
Management are not in accordance with the recommendations of the
fifth pay commission as accepted by the Government of India.
2. It is their case that at the time of applying 4th Pay Commission
they were given the pay scale of Rs.1400-2300 and in respect of the said
pay scale as per the recommendation of 5th Pay Commission they
should have been given pay scale of Rs.5000-8000. However, they were
given pay scale of Rs.4500-7000.
3. Aggrieved by the aforesaid action of the respondents, the
petitioner association had been making representations with the
respondents. They also came to this Court by filing W.P.(C).2719/2000.
In that case, before transferring the matter to the Central
Administrative Tribunal, Principal Bench, New Delhi, this Court vide
order dated 27.10.2005 passed following directions:
"I have heard counsel for the parties and been
taken through the previous orders as well as the
affidavit of the DTC filed on 23rd February, 2005.
It does not indicate that the report of the sub
committee was indeed placed before the Board
for consideration. In spite of the two orders
seeking a clarification, the DTC has chosen to
skirt the issue but has merely averred that the
Board after considering various aspects of the
representations rejected the same.
Learned counsel for the respondent has relied
upon a subsequent averment in the affidavit of
23rd February, 2005 to say that the matter was
considered by the Board. However, there is
nothing in support of that submission in either
of the previous affidavits or by way of reference
to the concerned Annexure in the previous
agenda, items or resolution. It would, therefore,
be appropriate that the report of the sub
committee is considered separately by the
Board. A direction is accordingly issued. Let
the Board take a decision on this aspect within a
period of four weeks from today after considering
the report of the Sub-Committee. The Decision
shall be communicated to the petitioners and a
copy thereof shall be filed on record before the
next date of hearing along with an affidavit."
4. Pursuant to the aforesaid directions, the matter was considered
by the Board of D.T.C. but the Board did not accept the case of the
petitioner inasmuch as the representation made by them to grant the
pay scale of Rs.5000-8000 was not accepted.
5. In the meanwhile, the matter after transfer to the Tribunal was
decided by the impugned order dated 22.07.2009. The matter was
heard denovo before the Tribunal. However, the Tribunal has not
accepted the case of the petitioner.
6. According to the petitioner, the post of Assistant Foreman at
which they are working and for which pay scale of Rs.1400-2300 was
provided at the time of 4th Pay Commission was upgraded to the pay
scale of Rs.5000-8000 as per the recommendation of 5th Pay
Commission as has been accepted by the Government and has been
applied by other corporations and authorities under respondent No.2
Govt. of N.C.T. of Delhi where the scale has been conferred to Diploma
Holder/Engineers who were also working in the pay scale of Rs. 1400-
2300 at the time of 4th Pay Commision. It is submitted that the work
done by the members of the petitioner association as well as by Junior
Engineers/Assistant Engineers working in various departments is
similar and therefore on the basis of parity and on the basis of the
principle of „equal pay for equal work‟, they should be granted the pay
scale of Rs.5000-8000. Denial of such pay scale to them is arbitrary
and as such the decision of the respondent as well as the Tribunal in
T.A.No. 675/2009 is liable to be set aside with directions to the
respondents to confer the pay scale of Rs.5000-8000 to the members of
the petitioner association.
7. It is also submitted that that post of the members of the
petitioner association, i.e., Assistant Foreman is also interchangeable
with that of Assistant Engineer/Junior Engineer. Hence, it is also
prayed that respondent No.1 be also directed to re-designate the post of
Assistant Foreman as Junior Engineer in the pay scale of 5000-8000/-
with the next promotional post as Assistant Engineer in the pay scale of
6500-10500/-. It is submitted that this prayer has also been rejected
by the Tribunal without any cogent reason.
8. We have heard the submissions made by the learned counsel for
the petitioner and have also carefully perused the order passed by the
Tribunal.
9. While rejecting the prayer made by the petitioner, the Tribunal
has taken into consideration the decision of the Board in not granting
the pay scale, which is assailed by the petitioners, on account of a
policy decision based on financial constraints of the Corporation which
is an autonomous body.
10. We have also considered the views taken by the Board which has
rejected the plea of petitioner and has made the following observations:
Resolution No.144/2004: item No.137/2004:
Existence of anomalies in the pay scales of
Officers/officials of DTC consequent to the
implementation of 5th Pay Commissions report.
________________________________________________
This Board considered the agenda item & the
orders of Hon‟ble High Court of Delhi and
discussed the matter in detail.
The Board noted that 50% posts of Asstt.
Foreman are filled up from promotional feeder
category of Mechanic and its allied categories
and 50% posts are filled up by direct
recruitment of Diploma holders as
apprenticeship under the Apprenticeship Act for
one year Apprenticeship and thereafter they go
through one year training as Trainee Supervisor.
A panel of such trainee supervisors is
maintained and as & when vacancy arises, these
Trainee Supervisors are offered the post of Asstt.
Foreman. In case, the Trainee Supervisor
accepts the offer by accepting the terms &
conditions of appointment, he is appointed as an
Asstt. Foreman. Earlier they used to be
appointed as Chargeman, who were having pay
scales equivalent to pay scale of post of
Mechanic. After the order of Hon‟ble High Court
dated 04.02.1980 the post of Chargeman was re-
designated and upgraded in a higher grade of
Asstt. Foreman vide DTC Board‟s Resolution
No.7/83 dated 17.02.1983. An agreement was
also entered into between the Corporation &
DTC Engineers‟s Association in 1991 regarding
fixation of their scales.
The Board also observed that the posts of Asstt.
Foreman & Foreman are functional posts and
are necessary in the working of the Corporation
for the depot workshop and Central workshop,
therefore, the post of Foreman cannot be
abolished.
The Board further observed that the
recommendations of 5th Pay Commission have
been implemented in the Corporation only in
part as the Corporation is an autonomous body
and has its specific functional requirements.
The Board also observed that comparison
between the posts of different departments, i.e.,
the post of Section Officer in Civil Engg. Deptt.
Or of any other category and the post of Asstt.
Foreman in R&M Deptt. Of the Corporation is
not reasonable as each department has its
distinct significance and role in the organization.
It will disturb the relativities of other categories
in the Organization. Further, the recruitment
rules and terms and conditions for each post are
different & not comparable.
The Board, in view of these facts & precarious
financial position of the Corporation, found it
difficult to accept the representation/demands
of DTC Engineers‟ Association and hence,
rejected the same. The case may be pursued as
per its merits in the Hon‟ble Court.
11. In view of the aforesaid, in our opinion this Court cannot review
the decision of Government which is a policy matter of an Autonomous
Body based on various reasons and factors including financial
constraints which has been upheld by the Tribunal in view of the
judgment of the Apex Court in Union of India v. Hiranmoy Sen,(2008) 1
SCC 630 wherein it has been held:
5. Learned counsel for the respondents
submitted that the auditors and assistants have
been historically treated on a par in the matter
of pay scales. Although this fact has been denied
by the appellant, we are of the opinion that even
if it is correct, that will not be of any help to the
respondents. To give an illustration, if post A
and post B have been carrying the same pay
scales, merely because the pay scale of post A
has been increased that by itself cannot result in
increase in the pay scale of post B to the same
level. It is entirely on the Government and the
authorities to fix the pay scales and to decide
whether the pay scale of post B should be
increased or not. The judiciary must exercise
self-restraint and not encroach into the
executive or legislative domain.
12. Similarly, in the case of Union of India v. P.V. Hariharan, (1997) 3
SCC 568, it has been held:
5. Before parting with this appeal, we feel
impelled to make a few observations. Over the
past few weeks, we have come across several
matters decided by Administrative Tribunals on
the question of pay scales. We have noticed that
quite often the Tribunals are interfering with pay
scales without proper reasons and without being
conscious of the fact that fixation of pay is not
their function. It is the function of the
Government which normally acts on the
recommendations of a Pay Commission. Change
of pay scale of a category has a cascading effect.
Several other categories similarly situated, as
well as those situated above and below, put
forward their claims on the basis of such
change. The Tribunal should realise that
interfering with the prescribed pay scales is a
serious matter. The Pay Commission, which goes
into the problem at great depth and happens to
have a full picture before it, is the proper
authority to decide upon this issue. Very often,
the doctrine of "equal pay for equal work" is also
being misunderstood and misapplied, freely
revising and enhancing the pay scales across the
board. We hope and trust that the Tribunals will
exercise due restraint in the matter. Unless a
clear case of hostile discrimination is made out,
there would be no justification for interfering
with the fixation of pay scales. We have come
across orders passed by Single Members and
that too quite often Administrative Members,
allowing such claims. These orders have a
serious impact on the public exchequer too. It
would be in the fitness of things if all matters
relating to pay scales, i.e., matters asking for a
higher pay scale or an enhanced pay scale, as
the case may be, on one or the other ground, are
heard by a Bench comprising at least one
Judicial Member. The Chairman of the Central
Administrative Tribunal and the Chairmen of the
State Administrative Tribunals shall consider
issuing appropriate instructions in the matter.
13. Even otherwise, we do not find any infirmity in the order of the
Tribunal which call for our interference while exercising powers under
Article 226 of the Constitution of India. Accordingly, the writ petition is
dismissed with no orders as to costs.
MOOL CHAND GARG, J.
FEBRUARY 23, 2010 ANIL KUMAR, J.
'anb'
