Delhi High Court
Union Of India vs Sh.Dharam Singh & Ors. on 29 July, 2011
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P(C) No.3225/2007
% Date of Decision: 29.07.2011
Union of India .... Petitioner
Through Mr.D.S.Mahendru, Advocate
Versus
Sh.Dharam Singh & Ors. .... Respondents
Through Mr. Sant Lal, Advocate for the
respondent Nos.1 to 35.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether reporters of Local papers may YES
be allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be NO
reported in the Digest?
ANIL KUMAR, J.
*
1. The petitioner, Union of India through the Secretary, Ministry of
Communication has challenged the order dated 20th November, 2006
passed by Central Administrative Tribunal, Principal Bench in O.A
No.164/2005 titled as „Dharam Singh & Ors. v. UOI & Ors‟ allowing the
original application of the respondents and directing the petitioner to
grant the same benefit as were granted to the applicants in O.A
No.2724/1992 decided by order dated 3rd December, 1997 and to give
the pay scales according to the recommendation of the 4th Central Pay
Commission and to revise the pay scales so granted in accordance with
the recommendation of 5th Central Pay Commission and to further give
all consequential benefits. The Tribunal also held that the amendment
made to the recruitment rules by notification dated 24th January, 2005
shall have effect from the date of its issue and not retrospectively.
2. Brief facts to comprehend the controversies are that the
respondents were working as Packers in the Foreign Post Office at Kotla
Road, New Delhi which is under the Department of Post in the Ministry
of Communication. The post of Packers was created in 1954 and the
respondents were issued separate appointment letters from time to
time.
3. The 4th Central Pay Commission had declared Packers in certain
departments as skilled labourers and granted them the pay scale of Rs.
950-1500/-. However the petitioners denied the same pay scales for the
petitioners, who were placed in the scale of Rs. 750-940/-, in spite of
representations made by their association, known as Foreign Post
Packers Association (registered), which was also declined.
4. Since the pay scales and other benefits granted to the Packers of
other departments were denied to the Packers of the Department of
Post, an original application being O.A No.2724/1992 was filed by two
Packers namely Sh.Prem Chand and Sh.Kali Chander as well as a
registered association known as Foreign Post Packers Association
(Registered). In the said original application it was prayed that the
recommendations of the 4th Central Pay Commission in respect of the
pay scale to the Packers of other departments be also implemented in
case of the Packers of the petitioner and that the post of Packers in the
Foreign Post Office be declared as skilled labourers.
5. Packers in other departments of other Ministries were declared as
skilled labourers and were given the pay scale of Rs.950-1500/- but for
the packers in the Department of Post the pay scale of Rs.750-940/-
was recommended.
6. The original application being O.A No.2724/1992 was contested
by the petitioner contending, inter-alia, that ordinarily a skilled post
requires a specific qualification of ITI certificate or experience certificate
or any diploma in the relevant area of work and in the absence of the
same, the employees will have to be considered as a group „D‟
employees, since they were inducted into service initially on the basis of
a literacy test. It was also contended that the 4th Central Pay
Commission had not recommended the pay scale of Rs.950-1500/- in
case of the Packers of the Department of Post. Instead according to the
petitioners it was contended that the recommendations of the 4th
Central Pay Commission was that the scale of Rs.260-350/- be
conferred upon such skilled employees only after three years of
experience. The plea of the petitioner that the Packers in the
Department of Post belong to Group „D" post for want of ITI certificate or
experience certificate or any diploma in the relevant area of work was
negated by the Tribunal on the ground that the matter had been
pending before he Tribunal since 1992 and six years had elapsed.
Reliance was also placed on an order dated 8th September, 1989 passed
in SLP No.535/1988 in the matter of Satish Kumar & Ors v. Delhi
Administration. Hence, the Tribunal by order dated 3rd December, 1997
in O.A No.2724/1992 had held that in the circumstances the petitioner
had no option but to implement the recommendations in respect of the
two applicants in the said Original Application as they had done so in
pursuance to the decision of the Supreme Court. Also the Tribunal
while allowing the Original Application No.2724/1992 directed the
petitioner to implement the decision giving the benefit of the 4th Central
Pay Commission to all other similarly placed Packers on the basis of the
public policy so that each individual Packer would not have to come to
the Tribunal for the relief separately. It was held so in para 7 of the said
judgment dated 3rd December, 1997, which is as under:-
"7. In the circumstances, after going through the
entire case file, and hearing the counsel on either side
at length, we are of the opinion that the
recommendations of the 4th Pay Commission in this
regard shall also be made applicable to the petitioners.
We leave the controversy as to whether the Association
is a recognized or not, open; on the other hand we
would direct the respondents to implement the
whatever decision taken, if any, in this regard, with
respect to all other similar placed Packers on the
basis of the public policy so that each individual
Packer may not be brought to this court for relief
separately."
7. Though the Tribunal in its order dated 3rd December, 1997 in O.A
No.2724/1992 titled as „Prem Chand & Ors v. Union of India & Ors.‟
had held that the recommendations of the 4th Central Pay Commission
shall be applicable in respect of other similarly placed Packers of the
Department of Post and that they shall entitled for arrears as well,
however, despite this categorical stipulation, the relief was declined to
the respondents in the present writ, who are Packers in the Department
of Post. Since the relief was not granted by the petitioner it ultimately
lead to the filing of the contempt petition being CP No. 333/2000
against them.
8. The petitioner, thereafter complied with the order of the Tribunal
and filed the Compliance Report by reply dated 22nd September, 2004
whereby the order dated 3rd December, 1997 had been implemented
only in case of those employees who were applicants in O.A
No.2724/1992. Despite the categorical direction by the Tribunal to
extend the benefit to all the Packers who are similarly placed, it was not
granted to the respondents.
9. The respondents had averred that respondents Nos.1 to 22 were
working as Packers in the Foreign Post Office on the date of order i.e.
3rd December, 1997 yet the benefit was denied to them. Although
respondents Nos.23 to 35 were working in the Department, however,
they were posted as packers only subsequent to the said order on
different dates. It was urged that since they were also discharging the
same duties as the applicants of O.A No.2724/1992, they too were
entitled to get the benefit of the 4th Central Pay Commission.
10. The respondents, therefore, sent a legal notice dated 28th October,
2004 to the petitioner and also contended that they are entitled to the
benefits of the replacement pay scale recommended by 5th Central Pay
Commission of the pay scale which was recommended by the 4th
Central Pay Commission. On failure of the petitioner to grant them the
relief, the petitioner filed original application being O.A No.164/2005
titled as „Dharam Singh & Ors. v. Union of India through the Secretary,
Ministry of Communication & Ors.‟ contending that the matter of pay
scale of the Packers of the Foreign Post Office had already been decided
by the Tribunal and since the respondents are similarly placed they are
also entitled to have the same pay scale as has been made applicable to
the applicants in O.A No.2724/1992. By denying them the pay scales,
the petitioner has ignored the principle of "equal pay for equal work"
and thus the petitioners have deliberately violated the express
provisions of Articles 14 & 16 of the Constitution of India. Further the
respondents contended that the earlier O.A No.2724/1992 was
contested by the petitioner on the ground that ordinarily skilled post
requires a specific qualification of ITI certificate or experience or any
diploma in the relevant area of work and in the absence of that the
applicants were not entitled to the pay scale recommended by the 4th
Central Pay Commission. Relying on the judgment dated 3rd December,
1997 in O.A No.2724/1992 it was contended on behalf of the
respondents that the said issue was examined in great detail by the
Tribunal and this plea was also rejected by the Supreme Court by its
order dated 17th July, 2000 which is as follows:-
" In the absence of there being pre-condition of
having I.T.I. certificate or Diploma in 4th Pay
Commission Report, the Union of India could not insist
for such certification of I.T.I. or diploma. However, we
note that the decision under challenge does not relate
to the 5th Pay Commission Report.
The Special Leave Petition is dismissed."
11. The respondents also alleged that the work of Packers in the
Foreign Post Office is more responsible and risky, and requires skill as
it relates to opening the sealed boxes and repacking all the articles in
the same manner. The so called boxes contain very valuable articles as
well as material like acids, medicines and other toxic materials, which
are harmful to health, apart from being valuable. Relying on a medical
checkup report it was contended that 80-90% of Packers in the Foreign
Post Office are suffering from tuberculosis and ten beds are always
reserved for them in T.B Hospital at Mehrauli. It was asserted that in
these circumstances it is inevitable to infer that the duties of the
Packers in the Foreign Post Office are more responsible and skilled as
compared to the Packers working in other departments.
12. The original application filed by the respondents was contested by
the petitioner, contending, inter-alia, that the order dated 3rd December,
1997 in O.A No.2724/1992 had been implemented in the case of the
applicants in the said original application and the said benefit could not
be extended to the respondents, as some of them were not working as
Packers on 3rd December, 1997 when the earlier original application
was decided, wherein it was directed to the petitioner to implement the
recommendations of the 4th Central Pay Commission, in respect of the
Packers of the Foreign Post Office also. It was denied that all the 35
respondents are similarly placed. It was also contended by the
petitioner that the matter is not within the jurisdiction of the Tribunal
as the Central Pay Commission is an Expert Body, being constituted by
the Government from time to time and which decides the pay scales and
service conditions of the Government employees. Consequently it was
contended that only the Pay Commission appointed by the Government
are the proper authorities to make recommendations regarding the pay
scales and service conditions of the employees.
13. The petitioner reiterated the plea which was also taken while
opposing the O.A No.2724/1992 which was decided on 3rd December,
1997 stating that the post of Packers which was re-designated as Mail
Peons, is a „Group D‟ post for which the 4th Central Pay Commission
had recommended the pay scale of Rs.750-940/- and the replacement
scale of Rs.2550-3200/- by the 5th Central Pay Commission. It was also
averred that Packers which were re-designated as Mail Peons do not
have a separate cadre and Packers are also working in other wings of
the department, that is post offices, circle offices etc. It was, however,
admitted that the recruitment to all these categories had been made as
per the recruitment rules. The petitioner attempted to justify the
recommendation of the 4th Central Pay Commission to give the scale of
Rs.950-1500/- to the Packers working in the Ministries of Railways,
Defence, CPWD and Prevention of Food Adulteration and not to the
Packers working in the Foreign Post Offices on account of fact that the
requirement of the educational qualifications with regard to these posts
were higher than the educational requirements for the post of Packers
in the Foreign Post Offices. The replacement of the pay scale of Rs.950-
1500/- by the replacement scale recommended by 5th Central Pay
Commission was also contested on the ground that not a single
respondent was working in Foreign Post department on date of the
implementation of 5th Scale Pay Commission with effect from 1st
January, 1996.
14. Recommendation of the 4th Central Pay Commission and the
replacement scale as recommended by the 5th Central Pay Commission
for the Packers of the Foreign Post Office was also resisted on the
ground that the petitioner has about 52,000 Group „D‟ employees and
hence the extension of the order dated 3rd December, 1997 to all these
employees would have a cascading effect to the tune of many crores of
rupees annually and it would also have wider repercussions as the
Group „D‟ employees working in other Ministries/departments would
also raise similar demands. It was also averred that the scale of
Rs.3050-4590/- given to the applicants of O.A No.2724/1992 is a scale
applicable to Group „C‟ employees. Therefore, if the said scale is given to
the Packers who are Group „D‟ employees, it would result in all
employees being in Group „C‟ and there would be no Group „D‟ staff at
all, which would inturn disturb the entire service hierarchy.
15. The petitioner also relied on the recruitment rules of Group „D‟
post in the Department of Post and the amendment to the said
recruitment rules carried out in 1989, being Recruitment Rules, 2002 of
Group „D‟ post, as well as, order dated 16th December, 2004 whereby
the designation of the packers was changed to Mail Peons and the
recruitment rules dated 24th January, 2005 whereby the post of packers
had been removed from the category of posts in Group „D‟.
16. The respondents had rebutted the pleas and contentions raised
by the petitioner and had filed an additional affidavit dated 29th August,
2006 stating that those in service as packers in various post offices
between 1st January, 1986 to 31st December, 1995 were entitled to the
pay scale of Rs.950-1500/- in terms of the order of the Tribunal dated
3rd December, 1997 and also the revised pay scale recommended by 5th
Central Pay Commission of Rs.3050-4590/- with effect from 1st
January, 1996. Reliance was placed on Rule 5 proviso and explanation
1 & 2 of Central Civil Services (Revised Pay) Rules, 1997 which reads as
follows:-
"5. Drawl of pay in the revised scales
Save as otherwise provided in these rules, a
Government servant shall draw pay in the revised scale
applicable to the post to which he is appointed:
Provided that a Government servant may elect to
continue to draw pay in the existing scale until
the date on which he earns his next or any
subsequent increment in the existing scale or
until he vacates his post or ceases to draw pay in
that scale.
Explanation 1.- The option to retain the existing
scale under the proviso to this rule shall be
admissible only in respect of one existing scale.
Explanation 2.- The aforesaid option shall not be
admissible to any person appointed to a post on or
after the 1st day of January, 1996, whether for the
first time in Government service, or by transfer or
promotion from another post and he shall not be
allowed pay only in the revised scale."
17. Regarding the aspect of the change of designation from Packers to
Mail Peons, it was asserted that the change of designation does not
change the nature of work and does not affect the entitlement to the
pay scale ordered by the Tribunal by order dated 3rd December, 1997
and thus would not affect the pay of future Packers, re-designated as
Mail Peons after 24th January, 2005.
18. The respondents also filed another additional affidavit dated 8th
September, 2006 to rebut the plea of the petitioner that the respondents
were not appointed as Packers but as Group „D‟ employees. It was
asserted by the respondents that Group „D‟ is not a post but a group of
several posts. Certain memos dated 5th February, 1998, 5th July, 2002
and 29th August, 2003, were also filed by the respondents to reiterate
that they were appointed as Packers and that they had been working as
Packers and reliance was placed on their designation given as "packers"
in the Recruitment Rules of 1970 as well as in 2002.
19. Although, by earlier order dated 3rd December, 1997 the Tribunal
had held that the 4th Central Pay Commission recommendations be
made applicable to similarly placed packers on the basis of the public
policy, so that each individual packer may not have to come to the
Court for the relief separately, yet the relief is denied to respondents
who are similarly placed in violation of the said order. The respondents
relied on State of Karnataka & Ors v. C.Lalitha, 2006 (2) SCC 747
holding that all persons similarly situated should be treated similarly
irrespective of the fact that only one person had approached the Court.
20. The Tribunal after considering the pleas and contentions of the
respondents and petitioners relied on the provisions in the Recruitment
Rules pertaining to the respondents. Reference was also made to the
Schedule to the Indian Posts & Telegraphs (Class IV Posts/Group „D‟
Posts) Recruitment Rules, 1970/2002/2005 (Amendment). It was
noticed that there are two parts, one pertaining to Circle and
Administrative Offices and the other pertaining to Subordinate Offices.
However, in both parts the first entry includes the post of Packers. The
Tribunal held that the post of packers continued in the Recruitment
Rules till it was deleted by amendment dated 24th January, 2005. The
executive order passed before 24th January, 2005 changing the
designation of Packers to Mail Peon in the Administrative Offices, as
well as, Subordinate Offices and to Mail Peons in the Foreign Post Office
was ignored on the ground that the statutory rules could not be
overridden by executive instructions and relied on „UOI & Ors v.
Somasundaram Vishwanath & Ors‟ (1989) 1 SCC 175 „and Vijay Singh
Rao v. State of Haryana & Anr‟, (1986) 1 SLR 455.
21. The Tribunal also held that by decision dated 3rd December, 1997
in O.A No.2724/1992 it had been concluded that the Packers in the
Foreign Post Offices were equally placed as Packers in other
departments and that they had to be treated as skilled labourers in
terms of the recommendation of the 4th Central Pay Commission. It was
also held that the 4th Central Pay Commission had not insisted on ITI
Certificate or diploma as a pre condition to a particular category of
employees being declared as skilled labourers.
22. The Tribunal also observed that since the order dated 3rd
December, 1997 in O.A No.2724/1992 had attained finality as the writ
petition filed against the said order was dismissed and the special leave
petition filed was also not allowed, the order has to be implemented for
all Packers working with the Petitioner irrespective of their date of
joining, with respect to the date of implementation of the
recommendations of the Fourth and Fifth Central Pay Commission. It
was further held that the said order was not in persona but an order in
rem, since the Tribunal had directed the implementation of the
recommendations of the 4th Central Pay Commission, in respect of all
similarly placed Packers. Therefore, the same benefits as were given to
the applicants in O.A No.2724/1992 are also admissible to the
respondents. The relevant paras 27, 28, 29 & 30 of the judgment of the
Tribunal are as under:-
27. Thus as per the Recruitment Rules, the post of
Packer under the Department of Posts continued till it was
abolished by amendment to the Recruitment Rules dated
24.01.2005.
28. The issue before us is to decide as to who are entitled
to the relief granted by this Tribunal‟s order in OA No.
2724/1992 and in particular, whether the applicants are
entitled for that relief. In this context, it is important to
note that in OA No. 2724/1992 (supra) this Tribunal had
come to the conclusion that Packers in the Foreign Post
Offices were equally placed as Packers in other
departments; that Packers were to be treated as skilled
labourers in terms of the recommendation of the Fourth
Central Pay Commission and that the Fourth Central Pay
Commission had not insisted on ITI certificate or diploma
as a pre-condition to a particular category of employees
being declared as skilled labourers. In the context of these
findings and also relying on a catena of cases decided by
various Courts confirming the principle of „equal pay for
equal work‟ as well as the judgment of the Hon‟ble Supreme
Court in SLP No. 5735/1998 in the matter of Satish Kumar
and Ors. Vs. Delhi Administration dated 08.09.1989, this
Tribunal had ordered that the respondents had no option
but to implement the recommendations of the Fourth
Central Pay Commission with regard to the applicants
therein. It was also made clear that the order of the
Tribunal should be implemented in respect of all other
similarly placed Packers as a matter of public policy so that
each individual Packer may not have to knock at the doors
of this Tribunal for relief separately. Thus, it can be seen
that the order of this Tribunal in OA No. 2724/1992 was
not an order in persona but an order in rem. That order
has also attained finality with the dismissal of the SLP filed
by the respondents before the Hon‟ble Supreme Court. In
effect that order has to be implemented for all the Packers
working with the respondents irrespective of their date of
joining vis-à-vis the date of implementation of the
recommendations of the Fourth or Fifth Central Pay
Commission or the date on which the order of this Tribunal
in OA No. 2724/1992 (supra) was passed. This is so
because there cannot be two pay scales for persons doing
the same job in the same organization, which would be
violative of Articles 14 & 16 of the Constitution of India.
This is also the ratio of various judgments of the Hon‟ble
Supreme Court as pointed in the order of this Tribunal in
OA No. 2724/1992 [Randhir Singh v. Union of India & Ors.,
1982 (1) SCC 618; Daily Rated Casual Labour employed
under P & T Department through Bhartiya Dak Tar
Mazdoor Manch v. Union of India & Ors., AIR 1987 SC
2342; Inder Singh & Ors. v. Vyas Muni Mishra & Ors.,
1987 (supp) SCC 257; Dhirendra Chamoli & Anr. v. State of
U.P., 1986 (1) SCC 637; and Jaipal & Ors. etc. v. State of
Haryana & Ors. etc., 1988 (3) SCC 354]. As regards the
judgment of the Hon‟ble Supreme Court in the case of State
of W.B. & ors. v. Hari Narayan Bhowal & Ors. (supra) cited
by the learned counsel for the respondents, we are not here
into fixation of pay scale but into providing relief in terms of
an order passed by this Tribunal, which has already
achieved finality.
29. We have also taken note of the fact that the
respondents have nowhere specifically denied that the
applicants are not at present working as packers in Foreign
Post Office, except saying that they were not in service as
on 01.01.1986 or that they were not in service on the date
of the order in OA No. 2724/1992 i.e. 03.12.1997 etc. Even
though it is not an issue before us, but the respondents
have, at several places, stated that the educational
qualification prescribed for Packers in Department of Posts
is primary level only. However, the Recruitment Rules of
1970 as well as 2002 prescribe it as "Middle School
standard pass or its equivalent Examination from a
recognized school", which according to the respondents is
also the qualification prescribed by the Ministry of
Railways.
30. Taking the totality of the facts and circumstances
into consideration were in respectful agreement with the
decision of this Tribunal in OA No. 2724/1992 (supra)
wherein respondents were directed to implement the
recommendations of the Fourth Central Pay Commission
regarding treatment of Packers in Foreign Post Offices as
skilled labourers, including the applicants therein as well
as other similarly placed Packers, as a matter of public
policy so that each individual Packer may not have to
approach this Tribunal for relief individually. We,
therefore, direct that the applicants in this O.A. shall be
granted the same benefit as was granted to the applicants
in OA No. 2724/1992 (supra). The pay scale so granted
shall also be revised in accordance with the
recommendations of the Fifth Central Pay Commission as
has been done in the case of beneficiaries in OA No.
2724/1992 (supra). The applicants will also be entitled to
all consequential benefits accordingly. Needless to
mention, the amendment made to the Recruitment Rules
ibid. vide Gazette Notification dated 24.01.2005 shall have
effect from the date of its issue, in the absence of any
stipulation to the contrary. It will, therefore, apply to
persons recruited thereafter."
23. The order dated 20th November, 2006 passed by the Tribunal
granting benefit of the order dated 3rd December, 1997 passed in O.A
No.2724/1992 to the present respondents is challenged by the
petitioner, on the ground that by extending the benefit of order dated
3rd December, 1997 to respondent Nos.1 to 35 would have a cascading
effect on public exchequer. The order is also impugned on the ground
that the post of Packer is now called Mail Peon which is not a separate
category but is only the designation of the job performed by the
Packers. The petitioner has also contended that the pay scales as
recommended by 4th and 5th Central Pay Commission have already been
made applicable to the respondents and if the respondents are allowed
a higher pay scale, which is applicable to Group „C‟ employees then
there shall remain no difference between Group „C‟ and Group „D‟
employees. The petitioner also contended that the relief granted in O.A
No.2724/1992 by order dated 3rd December, 1997 was restricted to the
applicants in the said application and could not be extended to the
present respondents. The petitioner reiterated that respondents Nos.9,
23, 25 to 29 and 31 to 35 were not even working or appointed as
Packers in the Foreign Post Office, New Delhi on the date of decision in
O.A No.2724/1992.
24. The pleas and contentions raised by the petitioner in the present
writ petition are rebutted by the respondents who have filed a detailed
counter affidavit dated 7th July, 2008 reiterating the pleas and
contentions raised on behalf of respondents in their original application
and additional affidavits filed before the Tribunal.
25. This Court has heard the learned counsel for the parties in detail
and has also perused the original application, reply to application and
additional affidavits filed by the respondents before the Tribunal and
the pleadings in the writ petition. The learned counsel for the petitioner
is unable to give any cogent reason which is legally sustainable as to
why the decision dated 3rd December, 1997 cannot be extended to the
present respondents who are similarly placed, in as much as, they are
the Packers in the Department of Post, Foreign Post Office. This is not
denied by the learned counsel for the petitioner that the order dated 3rd
December, 1997 in O.A No.2724/1992 has attained finality as it was
challenged upto the Supreme Court and their plea that the post of
Packers in the Foreign Post Office is not of a skilled worker, as they do
not hold an ITI certificate or any diploma in the relevant area of work,
had already been repelled by the Apex Court. The same plea cannot be
allowed to be taken by the petitioner in the facts and circumstances of
the present matter. This cannot be denied that while passing the order
dated 3rd December, 1997 it was categorically held that in respect of all
other similarly placed Packers on the basis of public policy, the
recommendation of 4th Central Pay Commission be given to each
individual Packer so that they need not come to the Court for the same
relief separately. The petitioner had filed a writ petition No.1205/1998
against the order dated 3rd December, 1997 which was dismissed by
order dated 17th August, 1999 holding that the Tribunal had relied on
the recommendation of the 4th Pay Commission correctly and extended
the same to the Packers of the postal department rightly and hence
declined to interfere with the order passed by the Tribunal. The
petitioner challenged the order of the High Court in W.P.(C)
No.1205/1998 dated 17th August, 1999 by filing the Special Leave
Petition being SLP No.CC-4208/2000 which was also dismissed by
order dated 17th July, 2000 and therefore the order of the Tribunal
attained finality.
26. The pleas and contentions already taken on behalf of petitioners,
which were decided in O.A No.2724/1992 and were also repelled by
order dated 3rd December, 1997 has attained finality and therefore it
cannot be re-agitated by the petitioner again. Except the plea that some
of the respondents were appointed as Packers after 3rd December, 1997,
the date of the decision in O.A No.2724/1992, no new plea has been
raised regarding the application of the judgment dated 3rd December,
1997 to some of the respondents.
27. This is not disputed that respondent Nos.1 to 22 were appointed
as Packers in the Foreign Post Office prior to 3rd December, 1997. After
the said decision has become final, which also held categorically that it
would be applicable to all similarly placed Packers on the basis of
public policy, so that the individual packers may not have to file a
separate petition for relief, the relief of the pay scale as recommended
by the 4th Central Pay Commission and the replacement of scale as
recommended by 5th Central Pay Commission cannot be denied to
them. No cogent ground has been raised by the petitioner to deny the
relief to the respondents. Those respondents, who had been appointed
after 3rd December, 1997 also cannot be denied the same pay scale as
they are doing the same work and are posted in the same department.
The order dated 3rd December, 1997 had not held that the relief granted
in the said order will not be applicable to those Packers who would be
appointed after that date. Rather it had been held that it would be
applicable to all the Packers who are similarly placed. To assess the
similarity between the applicants of the O.A No. 2724 of 1992 and the
present respondents, what is to be taken into consideration is as to
what is their designation, what work they are doing and in which
department they are posted. „Equal pay for equal work‟ cannot be
denied to some of the respondents on the ground that they were
appointed after the decision of the earlier original application on 3rd
December, 1997. The said order had been challenged in the High Court
and Supreme Court and had been upheld by these Courts. Hence, the
decision of the Tribunal dated 3rd December, 1997 will not be applicable
to those Packers of Foreign post office who would be appointed after
that date cannot be inferred in the facts and circumstances and under
law.
28. For those respondents who were appointed after 3rd December,
1997, the relief cannot be denied as they are also the Packers in the
Foreign Post Office and also for the reason that they are discharging
similar work as the Packers in the other Government departments, the
pay scale recommended by the 4th Central Pay Commission cannot be
denied to them on sole the ground that they were appointed as Packers
after 3rd December, 1997. What is relevant is whether they were
discharging work similar to the Packers who were granted relief by
order dated 3rd December, 1997 and not that they were not appointed
prior to 3rd December, 1997.
29. From perusal of the Recruitment Rules, 1970-2002-2005, it is
apparent that they are in two parts viz. one pertaining to Circle and
Administrative Offices and other pertaining to Subordinate Offices. In
the Recruitment rules of 1970 & 2002 (revised) there are entries for the
post of Packers in Circle and Administrative Offices as well as in
Subordinate Offices. Though the recruitment rules were amended on
24th February, 1989, however, those amendments related to peripheral
employees working in Subordinate Offices to join the main stream and
this amendment does not relate to whether Packer was a post or not
under the rules. By amendment of the recruitment rules in 24th
January, 2005, the post of Packers was removed and a new post of Mail
Peon was introduced in the Circle and Administrative Offices as well as
in Subordinate Offices. The learned counsel for the petitioner in the
circumstances has not been able to deny that the post of Packers under
the Department of Post continued till 24th February, 2005 when it was
abolished.
30. The Tribunal in its order dated 3rd December, 1997 in OA
No.2724/1992 had held that Packers in the Department of Post are also
skilled labourers in terms of the recommendation of the 4th Central Pay
Commission. The Tribunal had also noted that the 4th Central Pay
Commission had not insisted on ITI Certificate or diploma as a pre
condition to a particular category of employees being declared as skilled
labourers. This finding of the Tribunal attained finality and in the
circumstances, it cannot be inferred by any stretch of arguments that
the respondents, who are Packers in the Department of Post, are
different from the Packers in OA No.2724/1992. If the applicants in OA
No.2724/1992 were entitled for pay according to the recommendation of
4th Central Pay Commission and the replacement pay scale according to
the recommendation of the 5th Central Pay Commission, then there
cannot be two pay scales in the same department, one for those
applicants and the association of applicants who had filed an OA
No.2724/1992 decided on 3rd December, 1997 and the other applicable
to the present respondents.
31. The Tribunal while passing the impugned order dated 20th
November, 2006 also noted that the educational qualification prescribed
for Packers in the Department of Post is primary level, only on the basis
of the pleas of the petitioner, however, the Recruitment Rules of 1970 as
well as 2002 prescribe middle school standard passed, or its equivalent
examination from a recognized school. Before the Tribunal, the
petitioner had contended that similar qualification is prescribed by the
Ministry of Railways. If that be so then the Packers in the Department
of Post could not be differentiated with the other departments, for which
recommendations were made by the 4th Central Pay Commission. In the
circumstances, the recommendations of the 4th Central Pay
Commission to the packers of the Department of Post and the
replacement scale as recommended by the 5th Central Pay Commission
cannot be faulted on any of the grounds urged on behalf of the
petitioner.
32. The Tribunal has also held that the amendment made to the
Recruitment Rules by gazette Notification dated 24th January, 2005
shall have effect from the date of its issue, in the absence of any
stipulation to the contrary which fact has not been denied by the
learned counsel for the respondents. It is also apparent that the
amended rules effected from 24th January, 2005 are not applicable to
the respondents as they have been appointed as Packers prior to that
date.
33. In the circumstances, the learned counsel for the petitioner has
not been able to urge any ground on the basis of which it can be held
that the order of the Tribunal dated 20th November, 2006 passed in OA
No.164/2005 suffers from any illegality, irregularity, or such perversity
which will require interference by this Court in exercise of its
jurisdiction under Article 226 of the Constitution of India. No other
grounds have been urged on behalf of the petitioner except those which
are dealt hereinbefore.
34. Therefore the writ petition is without any merit and it is
dismissed. Event though, the Tribunal in its order dated 3rd December,
1997 in OA No.2724/1992 had categorically held that the said relief
granted could not be denied by the petitioner to other similarly placed
packers, so that individual packers may not have to approach the Court
separately for the same relief, the petitioner, however, denied the same
relief to the respondents without any cogent or legally sustainable
reasons. In the circumstances, the petition is dismissed. All the
respondents shall be entitled for a cost of Rs.1,000/- each.
ANIL KUMAR, J.
SUDERSHAN KUMAR MISRA, J.
JULY 29, 2011
„k‟
