Delhi High Court

Y.D. Sharma & Ors. vs Union Of India & Ors. on 30 November, 2011

Author: A.K.Sikri

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      WP(C) No.5297 of 2000

                               Reserved on:   10th October, 2011
%                            Pronounced on: 30th November, 2011


      Y.D. SHARMA & ORS.                         . . . PETITIONERS

                            Through:    Mr. Pramod Kumar Sharma,
                                        Advocate.

                             VERSUS

      UNION OF INDIA & ORS.                    . . .RESPONDENTS

Through: Mr. Anurag Kasana, Advocate.

CORAM :-

HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE SIDDHARTH MRIDUL

A.K. SIKRI, ACTING CHIEF JUSTICE

1. The petitioners herein who are 34 in numbers have

impugned the decision dated 18.11.1999 rendered by the

Central Administrative Tribunal (hereinafter referred to as

„the Tribunal‟) in OA No.2346A/95 thereby dismissing the

claims of the petitioners for grant of revision of pay scales

with effect from 01.1.1986. In a nutshell, the Tribunal has

held that the orders of the respondents dated 29.11.1991

revising the pay scales with effect from 11.9.1989 was

justified.

2. The petitioners joined the Department of Agriculture &

Corporation and Directorate of Economics and Statistics,

Ministry of Agriculture, Government of India. On the basis of

the implementation of the recommendation of IVth Central

Pay Commission, the pay scales were revised with effect

from 01.1.1986 giving them the pay scale of `1350-2200/-.

In respect of Data Entry Operators, it was found that they

were 14 scales at different levels. The IVth CPC which was

set up to make recommendation with regard to pay scale

and other service matters of Central Government Employees

made several recommendations. In Para 11.45 of their

report, the Commission recommended that:

"It has been suggested that there should be regularly constituted service for staff engaged on Electronic Data Processing work. While we agree with the suggestion, we thing that at this stage of development a separate cadre of Electronic Data Processing officers may not be feasible. In fact doe to rapid development of computerization in administration existing employees should be exposed to this discipline so that their skills get upgraded for switch over to the new technology of work. However, as a long term policy it will be desirable to develop a cadre of experienced employees trained in Electronic Data Processing and other related areas of work. We are of the view that Department of Electronic should examine the matter and suggest re- organisation of existing electronic date processing posts and prescribed uniform pay scales and

designations in consultation with DOPT. Until then the pay scales and special pay recommended by us in Chapter 8 and 24 will apply to these posts."

3. In Para 31.2, the Commission further stated that:

"The pay structure recommended by us in based on the index average 608 (1960-1000) which was reached with the 12 monthly average of the index for the period ending December 31, 1985. Our terms of reference do not require us to indicate the date from which our recommendations should take effect. We, however, thing that it would be administratively convenient to give the benefit of the scales of pay recommended by us from the beginning of the current financial year. In regard to our recommendations on other matters, Government will have to take specific decision to give effect to them from a suitable date keeping in view all relevant aspects including the administration and accounting work."

4. Prior to IVth Pay Commission EDP posts in various

Departments carried different designations, pay scales,

method of recruitment, educational qualifications/experience

and recruitment rules on the basis of job requirements of

each Department. The Pay Commission recommended

general revision of pay scales. For Electronic Data

Processing Staff in Railways - Special recommendations

were made in Chapter 10 and accordingly replacement

scales were given to them because EDP staff in Railways was

in receipt of special pay prior to 01.1.1986.

5. The Sheshagiri Committee was set up as a follow up the

recommendations made by the IVth Pay Commission in para

11.45 which formed part of "Other Recommendations". The

Committee was set up by the Department of Electronics in

November, 1986 . The Committee gave report on

05.6.1987. The Government examined the

recommendations of the Committee and final orders were

issued on 11.9.1989 to restructure and re-organise

Electronic Data processing posts in different Departments of

the Government of India. These orders were made effective

from 11.9.1989. By order dated 11.9.1989,

recommendations of IVth Pay Commission with regard to

restructuring and re-organisation of EDP posts with an

objective to bring uniformity in pay scales and designations,

educational qualifications/experience and method of

recruitment are intended to be implemented. With the

reorganization and restructuring of EDP Cadre, the need for

revised recruitment rules was felt and accordingly it was

provided for in Para 5 of the O.M. dated 11.9.1989 that

Department of Personnel & Training will attempt Model

Recruitment Rules for EDP posts. On the basis of the Model

Recruitment Rules so framed by the Department of

Personnel & Training revised recruitment rules for EDO „A‟ to

„D‟ were framed and notified vide Notification. Therefore,

this is not simply the case of re-desigantion of the posts of

Computer (MT). The existing incumbents working against

these posts were adjusted against the restructured EDP

Cadre taking into account their experience and qualification.

6. IVth Central Pay Commission had made certain

recommendations for streamlining the pay structure and for

constituting regular service for staff engaged in EDP work.

The Government had appointed Seshagiri Committee to go

into those questions and give its recommendations and also

remove the anomaly, which has resulted in implementation

of the IVth Central Pay Commission. After Seshagiri

Committee gave its recommendation/suggestion

rationalizing of pay scale, Office Order dated 11.9.1989 was

issued by the Ministry of Finance giving benefit of those pay

scales with effect from 11.9.1989. It is under these

circumstances, when the orders were issued on 29.11.1991,

the benefit was given with effect from 11.9.1989.

7. The case of the petitioners before the Tribunal as well as

before us was that once the anomaly was accepted and

remedial steps were taken thereupon, there was no question

of making the same applicable from 11.9.1989 and it should

have been with effect from 01.1.1986. The Tribunal has not

accepted this plea relying upon the judgment of the

Supreme Court in the case of Union of India & Ors. Vs.

Secretary, Madras Civil Audit and Accounts Association

and Anr., 1992 (20) ATC 176, wherein the Court has held

as under:

"A combined reading of the Pay Commission report and the Office Memo makes it abundantly clear that the second set of the recommendations could only be given effect to after identifying these posts. For that purpose, the whole matter is required to be examined and the necessary decision has to be taken. In this context, it is also necessary to note that the post of Assistant Accounts Officer was not in existence earlier which is now brought under a functional grade. For that purpose necessary rules have to be framed prescribing the eligibility etc. and the senior Accounts who have completed three years regular service in the grade are upgraded to this post. It is evident that all this could have been done only in the year 1987 and in the said organized Accounts office higher scales of pay were given with effect from April 1, 1987 i.e. from the beginning of the financial year. We are unable to see as to how the respondents can insist that they must be given higher scales with effect from January 1, 1986. This claim is obviously based on the ground that some of the officers belonging to the Audit wing were given scales with effect from January 1, 1986. But it must be borne in mind that they were eligible on that date for the higher scales. Likewise, some of the officers of the Accounts Wing who were eligible for higher scales were also given. But with reference to the second part of functional grades in the Accounts Wing have to be identified and created. The respondents who got that benefit of being upgraded now cannot claim that they must also be given same scales like others in respect of whom the recommendations of the Pay Commission were given effect to with effect from January 1, 1986. There is a clear distinction between the two categories. Therefore, the submission that giving two different dates of implementation of the

recommendations in respect of these two categories of personnel of the Accounts Wing and the Audit Wing offends Articles 14 and 16, is liable to be rejected."

8. The Tribunal was of the view that the aforesaid observation

was fully applicable to the facts and circumstances of the

case. As per the Tribunal, the IVth Central Pay Commission

had suggested, inter alia, that in respect of large number of

EDP posts which are existing in various

Ministries/Departments, other than the Department of

Railways, which have been dealt with separately in Chapter

10, there should be a regularly constituted service for staff

engaged on EDP work. In this connection, they had

recommended that the Department of Electronics should

examine the matter and suggest reorganization of the

existing posts and prescribe uniform pay scales and

designations in consultation with the Department of

Personnel, which exercise will naturally take some time. The

petitioners cannot, therefore, claim that their case is similar

to the EDP staff in the Railway Administration because the

Pay Commission itself had dealt with them separately. They

had also recommended that the Government will have to

take specific decisions to give effect to the revised pay

scales from a suitable date keeping in view all relevant

aspects, including the administrative exigencies. Admittedly,

in pursuance of the IVth Central Pay Commission‟s

recommendations, the Government had carried out the

exercise to consider the replacement pay scales to the

incumbents of the various EDP posts and issued the

impugned O.M. dated 11.10.1989, which gave effect to the

revised pay scales from 11.9.1989.

9. The aforesaid analysis done by the Tribunal is not factually

correct. It is very clear that the IVth Central Pay

Commission itself had made certain recommendations for

streamlining the pay structure and for constituting regular

service for staff engaged in EDP work. The Sheshagiri

Committee was appointed to go into those questions and

give its recommendations and also remove the anomaly

which had resulted in implementation of IVth Central Pay

Commission. The Sheshagiri Committee thus gave its

recommendations vide which anomaly was removed. Once

that was the scope of exercise done by the Sheshagiri

Committee and the recommendations/suggestions for

rationalizing the pay scale were given, it was to be given

effect to from the date when IVth Central Pay Commission

was enforced, i.e. 01.01.1986 and not from the date of

office order, i.e. 11.09.1989. The Tribunal wrongly relied

upon the judgment of the Supreme Court in Secretary,

Madras Civil Audit and Accounts Association (supra).

That was a case where even the posts had not been

identified which were to be given the benefit. Whole matter

required to be examined whereupon decision was to be

taken. So much so, post of Assistant Accounts Officer was

not even in existence earlier. Necessarily, therefore, rules

for the said post had to be framed prescribing the eligibility

etc. It was on these facts that the Supreme Court upheld

the cut-off date fixed by the Government, i.e. 1.4.1987.

10. In so far as EDP posts are concerned, they were already in

existence. It is stated at the cost of repetition that IVth Pay

Commission had also recommended streamlining the pay

structure of the staff engaged in EDP work in different

departments. Sheshagiri Committee was set up only for the

purpose of removing anomalies. It is a matter of record that

in various other departments/Ministries, the benefit of pay

scale to such EDPs is directed to be given from 01.01.1986.

In fact, there was conflict of opinion between various

benches of the Tribunal itself. In some of the judgments

referred by some benches, the cut-off date of 11.09.1989

had been set aside and benefit given from 01.01.1986 while

some other benches maintained the date of 11.09.1989.

Matter was referred to the Full Bench in OA No.2639/1989

entitled Babu Lal & Ors. v. Union of India & Ors. The

Full Bench rendered its decision on 31.07.2000 holding that

benefit was admissible from 01.01.1986. Distinguishing the

judgment in case of Secretary, Madras Civil Audit and

Accounts Association (supra), the Full Bench relied upon

later decision of the Apex Court in Chandraprakash

Madhavrao Dawda & Ors. v. Union of India & Ors.,

1998 (2) SCSLJ 390 construing the very same OM dated

11.9.1989 and giving benefit from 1.1.1986. The conclusion

of the Supreme Court in the said judgment is as under:

"61. For all the above reasons, the impugned orders dated 2.7.90, 16.3.98 and all other orders which have the effect of redesignating the applicants - who were recruited as Data Processing Assistants - as Data Entry Operators in the scale of 1350-2200 (or 1400-2300 by concession of counsel) are arbitrary and illegal, ultra-vires and are declared violative of Articles 14 and 16 of the Constitution of India. The appellants are declared entitled to the designation of Data Processing Assistants grade II (also called earlier as gr B) in the scale of Rs.1600-2660 with effect from 1.1.1986, the date when the IV Pay Commission scales came into force. The appellants are also entitled to the scale of Rs.5000-8000 with effect from 1.1.96 in view of the government orders passed in

connection with the Vth Pay Commission recommendations.

Aforesaid decision has been followed by a later

judgment of the Supreme Court in the case of Kamalkar &

Ors. v. Union of India & Ors., 1999 (3) SLJ 307 whereby

the benefit which had been granted to the appellants in the

earlier decision was extended also to others who had

approached the Supreme Court in the aforesaid case.

11. Thus, the matter has been authoritatively determined by the

Supreme Court itself qua the same Office Memorandum

giving benefit from 01.01.1986 and there is no reason to

deprive the petitioners of the said benefit. We thus, make

the rule absolute; allow this writ petition; set aside the order

of the Tribunal; and hold that the petitioners shall be entitled