Suresh & Others vs Union Of India & Others
2010 Latest Caselaw 3433 Del

 *           IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                         W.P.(C) No.386/2007
                                                22nd July, 2010

 SURESH & OTHERS                                               ...... Petitioners

                                  Through:      Mr. G.D.Gupta Sr. Advocate
                                                with Mr. M.L.Ohri, Advocate

                                  VERSUS

 UNION OF INDIA & OTHERS                                       ....Respondents

                                  Through:      Ms. Manpreet Kaur and
                                                Mr. H.K.Gangwani, Advocates
                                                for Respondent No.1.
 CORAM:
 HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

 1.   Whether the Reporters of local papers 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?


 %                                JUDGMENT


 SANJAY KISHAN KAUL, J. (ORAL)

1. The petitioners were working as Assistants in the office of Directorate

General of Income Tax (Investigation). A set of such similarly placed Assistants

in the same department filed an OA earlier seeking parity with Assistants of the

Central Secretariat who had been given the revised pay scale of Rs. 1640-2900

while denying the same to the Assistants in the Directorate General of Income Tax

(Investigation). The applicants therein sought the directions of the CAT for OM

dated 31.7.1990 to apply to them equally.

2. The Division Bench of the CAT analyzed this dispute specifically taking

into consideration the work profile of the Assistants in the office of the Central

Secretariat and the Assistants in the office of the Directorate General of Income

Tax (Investigation). The Tribunal found in favour of the applicants vide a common

order passed in OA 144-A/1993, 985/1993 and 548/1994 titled as V.R.Panchal

and others Vs. Union of India decided on 19.1.1996. This order was sought to be

assailed by the Union of India in SLP 2835/1996. The order passed by the

Supreme Court in this appeal on 11.7.1996 records as under:-

"Delay condoned.

The Special leave petition is dismissed on merits."

3. The aforesaid thus shows that the order passed in V.R.Panchal & others

case (supra) was affirmed on merits by the Supreme Court. The judgment was

also implemented qua the petitioners therein.

4. The grievance of the petitioners herein was that they are identically situated

to V.R.Panchal & others case (supra) and that this decision ought to have been

applied to them equally and they should have also been granted the same pay scale

even if they had not approached the CAT. We may notice in this behalf that when

some of such similarly situated persons approached the CAT, the benefit was

granted to them. The Union of India filed a writ petition under Article 226 of the

Constitution of India challenging the order of the CAT and that writ petition was

dismissed for non-prosecution.

5. An important development which took place was the reference to a Full

Bench of the CAT in respect of Stenographers Grade-II and Assistants working in

some of the subordinate and attached offices with the Government of India in

respect of the following question :-

"Whether Stenographers and Assistants of subordinate and attached offices of Government of India are entitled to the pay scale of Rs. 1640-2900 applicable to Stenographers and Assistants working in Central Secretariat Service."

6. The reference was more than in one matter where applications for relief had

been filed before the CAT by Stenographers Grade-II and Assistants of the Central

Electricity Authority, Assistants, Directorate of Income Tax (Income Tax and

Audit) Stenographers, Grade-I of the Indian Meteorological Department etc. This

reference was answered in favour of the Union of India. We may notice at this

stage that the plea arising from the order in V.R.Panchal & Others case (supra)

against which SLP had been dismissed on merits, was noticed by the Full Bench.

There has been unfortunately however no detailed discussion in this behalf as to

the impact thereof but suffice to say that the OAs considered by the Full Bench

were stated to have facts and circumstances which were distinguishable and thus

the order of the Supreme Court in SLP, dismissing the challenge to the Tribunal

order in V.R.Panchal & Others case (supra) even on merits was treated not as a

binding precedent to follow in the facts of the case before the Full Bench on the

ground that the applicants who are Stenographers Grade-II claiming higher

replacement scale which is actually the pay scale for the promotional posts of

Stenographers Grade-II in non Secretariat offices.

7. The petitioners, when they approached the CAT by filing an OA No.

218/2005 aggrieved by the non implementation of V.R.Panchal & others case

(supra) qua them were faced with this judgment of the Full Bench. The petitioners

however, pleaded that neither they nor any other Assistants from the Directorate

General of Income Tax (Investigation) were before the Full Bench and thus the

Full Bench could have no application to the facts of their case. It was also

canvassed that the Full Bench itself had observed that ratio of V.R.Panchal and

others case (supra) which was affirmed by the Supreme Court on merits applied to

its own facts i.e. Assistants in the office of Directorate General of Income Tax

(Investigation) which is a post occupied by the petitioners.

8. The OA filed by the petitioners was however dismissed by the impugned

order dated 17.7.2006 by a Division Bench of the CAT only on the ground that the

Full Bench of the CAT would apply to the case of the petitioners without

consideration of the merits of the claim of the petitioners. We are also informed

by the respondents by a reference to the counter-affidavit that different Benches of

the CAT in their own facts have applied this Full Bench judgment and that view

has been upheld by this court.

9. We are thus faced with the situation where on one hand we have the

judgment in V.R.Panchal & others case (supra) as affirmed by the Supreme Court

on merits albeit by a non-reasoned order in respect of Assistants of the Directorate

General of Income Tax (Investigation) while on the other hand a Full Bench of the

CAT has considered a reference arising from the parity claimed by Stenographers

and Assistants of Subordinate and attached offices of Government of India which

was answered against them which included the Assistants of Directorate of

Income Tax (Income Tax and Audit) Division though not of the Investigation

Division.

10. Learned senior counsel for the petitioner before us has strongly canvassed

the view that the petitioners cannot be treated differently from other Assistants

who succeeded in V.R.Panchal & others case (supra) and in that behalf has relied

upon the observations of the Supreme Court in P. Savita and others Vs. Union of

India and others AIR 1985 SC 1124. The facts of the said case show that the

Third Pay Commission classified the Senior Draughtsman in the Ministry of

Defence and Production in two groups and recommended higher pay scale for one

group not on any merit-cum-seniority basis, but only on seniority-cum-fitness

basis. The work performed by both these types of draughtsman was the same with

both set of Draughtsman discharging the same functions and duties. Such a

grouping was held to be violative of Article 14 of the Constitution of India and it

was observed that in the performance of the same duties of the same post there

cannot be two pay scales.

11. On facts, learned senior counsel for the petitioner submitted that the

presence of the Assistants of the Directorate of Income Tax (Income Tax and

Audit) Division before the Full Bench cannot prejudice the case of the petitioner

as there is a finding of fact in V.R.Panchal & others case (supra) of the task

performed by the Assistants of the Investigation Division being identical to the

work performed by the Assistants of the Central Secretariat Service.

12. Learned counsel for the respondent on the other hand seeks to support the

view taken by the CAT in the impugned order by relying on the judgment of the

CAT which has found favour by this court in different proceedings in the context

of different services. In the alternative, it is submitted that the impugned order has

given no factual finding and has passed its judgment only on the views expressed

by the Full Bench of the CAT and thus the matter should be remanded back to the

CAT to be examined on merits.

We find substance in the contention of the learned senior counsel for the

petitioner that the impugned order could not have been passed merely on the basis

of the judgment of the Full Bench of the CAT especially in view of the findings in

V.R.Panchal & others case (supra) which stood affirmed on merits by the

Supreme Court. This view was further reinforced by certain observations in the

Full Bench judgment of CAT which we have referred to above where the Full

Bench judgment seems to suggest that the V.R.Panchal & others case (supra)

would apply on its own facts. There has been no consideration of the comparison

of duties of the Assistants in the Directorate of Income Tax Investigation Division

with other Divisions like the Income Tax and Audit Division or the other non-

successful petitioners before the Full Bench who were Assistants of Subordinate

and attached offices of Government of India. We, thus, find that the impugned

order cannot be sustained and is liable to be set aside.

13. The next question arises as to what course of action has to thereafter follow.

Taking into consideration the submissions of learned counsel for the respondent

we are inclined to adopt the second course of action of remanding the matter back

to the Central Administrative Tribunal. The CAT will have to examine the case of

the petitioners keeping in mind specifically that V.R.Panchal & others case

(supra) is in respect of the Investigation Division itself and that judgment stands

affirmed by the Supreme Court on merits, although by a non-speaking order and

the observations made in P. Savita & others case, would thus be relevant to the

issue. It is also the case of the petitioners, which will have to be examined, that

their duties are not identical to that of the Assistants in the Income Tax and Audit

Division and the effect thereof.

14. The impugned order dated 17.7.2006 is accordingly set aside and the matter

remanded back to the Central Administrative Tribunal to decide the controversy

on merits keeping in mind our aforesaid observations. The parties are left to bear

their own costs.

15. OA No. 218/2005 be listed before the appropriate Bench of the CAT,

Principal Bench, New Delhi, for directions on 9th August, 2010 and we would

expect that since it is a case of remand, the CAT would decide the matter

expeditiously.

                                                 SANJAY KISHAN KAUL, J




JULY 22, 2010                                    VALMIKI J. MEHTA, J.
ib