Sh. Kaushik Paik And Ors vs Union Of India And Ors
2013 Latest Caselaw 3976 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Decided on: September 6, 2013
+      WP(C) NO. 116/2013

       SH. KAUSHIK PAIK AND ORS.                       ..... Petitioners
                     Through Ms.Jyoti Singh, Sr.Adv. with Ms.Tinu
                     Bajwa and Ms.Sahilla Lamba, Advs.

                          versus

       UNION OF INDIA AND ORS                    ..... Respondents

Through Mr.C.K.Sharma, Adv. for R-1 to 3.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

% MR. JUSTICE S.RAVINDRA BHAT(Oral)

1. We have heard learned counsel for the parties.

2. The petitioners had approached the Tribunal for a direction to grant

them grade pay of Rs.4800 (PB-2) and Rs.5400/- (PB-3) upon completion of

four years as per the provisions of part-B Section II, serial No.1(1) of CCS

(RP) Rules, 2008 w.e.f. 1st January, 2006.

The petitioners are working in Indian Coast Guard Organization

which was established in the year 1977 by virtue of a decision of the Central

Government. The said organisation was to have its own regular composite

cadre of civilians for the headquarters and lower formations of employees.

Till this end was achieved, the Government was to induct suitable persons

WP(C) No.116 /2013 Page 1 on deputation from other Central Government Cadres. The Coast Guard

used to resort to direct recruitment in the post of LDC, Assistant and

Stenographers, Grade-D.

3. The petitioners have relied upon the hierarchy of posts and a pay

structure that existed from time to time in view of recommendations of 3rd,

4th and 5th Pay Commissions. This has been disclosed in the form of tables

sharing parity. The same is extracted below for convenience :-

Promotion & Feeder Grade Equivalent Promotion Equivalent Promotion in CGO & Feeder Grade in CSS & Feeder Grade in AFHQ SCSO DS JD ↑ ↑ ↑ CSO US DD ↑ ↑ ↑ SO SO SO ↑ ↑ ↑ Assistant Assistant Assistant ↑ ↑ ↑ UDC UDC UDC ↑ ↑ ↑ LDC LDC LDC

4. The grievance by the petitioners in the proceedings before CAT was

that the parity which existed between a Section Officer in the Coast Guard

of the two different groups, i.e. PB-2 and PB-3 with other similarly placed

WP(C) No.116 /2013 Page 2 officials in the Central Secretariat Services and Armed Forces Headquarters,

was sought to be denied by the respondents. It was argued before the CAT

that this denial of parity was arbitrary and not based on any rationale. In

support of their submissions, the petitioners relied upon the Recruitment

Rules and the staffing pattern in the Coast Guard as compared with the other

organisations which contain a similar hierarchy of civilian posts.

5. The Tribunal heard the matter. Since the respondents resisted the

petitioner's claim, it relied upon its previous ruling in OA no.143/2004

decided by the Lucknow Bench on 10.10.2011. The following extracts of

the Tribunal's order are reproduced below:-

"5. Respondents have also relied upon the order dated 10.10.2011 in OA no.143/2004 decided by the Lucknow Bench of the Central Administrative Tribunal, which held as follows:-

"Parity cannot be claimed merely on the basis that earlier the subject post and the reference category posts were carrying the same scale of pay. The Pay Commission has two functions: to revise the existing pay scale, by recommending revised pay scales corresponding to the pre-

revised pay scales and, secondly, make recommendations for upgrading or downgrading posts resulting in higher pay scales or lower pay scales, depending upon the nature of duties and functions attached to those posts. Thus one of the functions of the pay than what was earlier being enjoyed with reference to their duties and responsibilities, and extend such higher scale to those categories of posts. One post which is considered as having a lesser pay scale may

WP(C) No.116 /2013 Page 3 be assigned a higher pay scale and another post which is considered as having a lesser pay scale may be assigned a higher pay scale and another post which is considered to have a proper pay scale may merely be assigned the corresponding revised pay scale but not any higher pay scale. Therefore, the mere fact that at an earlier point of time, two posts were carrying the same pay scale does not mean that after the implementation of revision in pay scales, they should necessarily have the same revised pay scale. The benefit of higher pay scale can only be claimed by establishing that holders of the subject post and holders of reference category posts, discharge duties and functions identical with, or similar to, each other and that the continuation of disparity is irrational and unjust."

Thereafter, without further examination of materials presented by it,

the Tribunal rejected the submissions of the petitioners.

6. Ms. Jyoti Singh, learned senior counsel argues that the staffing

pattern, the pay scale and the broad nature of duties and functions of the

Section Officer at both levels - who claim the parity in the present case - are

identical with those discharged by members of the Secretariat Service at a

similar level as well as those in the Armed forces headquarters, placed at a

similar level. It was argued that the recommendations of the Pay

Commission, contrary to the assertions of the respondents, nowhere states

that existing parity must be broken. In support of this argument, learned

counsel relied upon the following extracts of the Commission's

WP(C) No.116 /2013 Page 4 recommendations :-

"Recommendations:

3.1.9 Accordingly, the Commission recommends up- gradation of the entry scale of Section Officers in all Secretariat Services (including CCS as well as non participating ministries/departments/organizations) to Rs.7500-12000 corresponding to the revised pay band PB 2 of Rs.8700-34800 along with grade pay of Rs.4800. Further, on par with the dispensation already available in CSS, the Section Officers in other Secretariat Offices, which have always had an established parity with CSS/CSSS, shall be extended the scale of Rs.8000-13500 in Group -B corresponding to the revised pay band PB 2 of Rs.8700- 34800 along with grade pay of Rs.4800 on completion of four years service in the lower grade. This will ensure full parity between all Secretariat Offices. It is clarified that the pay band PB 2 of Rs.8700-34800 along with the grade pay of Rs.4800 is being recommended for the post of Section Officer in these services solely to maintain the existing relatives which were disturbed when the scale was extended only to the Section Officers in CSS. The grade carrying grade pay of Rs.4800 in pay band PB-2 is, otherwise, not to be treated as a regular grade and should not be extended to any other category of employees. These recommendations shall apply mutatis-mutandis to post of Private Secretary/equivalent in these services as well. The structure of posts in Secretariat Offices would now be as under:-

Post Pre revised pay scale Corresponding revised pay bank and grade pay LDC Rs.3050-4590 PB-1 of Rs.4860-20200 along with grade pay of Rs.1900 UDC Rs.4000-6000 PB-1 of Rs.4860-20200 along with grade pay of Rs.2400 Assistant Rs.6500-10500 PB-2 of Rs.8700-34800 along with grade pay of

WP(C) No.116 /2013 Page 5 Rs.4200 Section Officer Rs.7500-12000 PB-2 of Rs.8700-34800 Rs.8000-13500 (on along with grade pay of completion of four years) Rs.4800.

PB-2 of Rs.8700-34800 along with grade pay of Rs.5400* (on completion of four years) Under Secretary Rs.1000-15200 PB-2 of Rs.15600-39100 along with grade pay of Rs.6100 Deputy Secretary Rs.12000-16500 PB-3 of Rs.15600-39100 along with grade pay of Rs.6600 Director Rs.14300-18300 PB-3 of Rs.15600-39100 along with grade pay of Rs.7600

(* This scale shall be available only in such of those organisations/services which have a historical parity with CSS/CSSS. Services like AFHQSS/AFHQSSS/RBSS and Ministerial /Secretarial posts in Ministries/Departments organisations like MEA, Ministry of Parliamentary Affairs, CVC, UPSE, etc. would therefore be covered.)"

7. It was submitted that the above extracts of the Pay Commission

recommendations in fact establish that existing parity could not be disturbed.

In furtherance of the same argument, the learned senior counsel relied upon

the extracts of the Rules framed pursuant to the recommendations/and even

accepting it, under a proviso Article 309 of the Constitution in 2008. The

relevant extract of the Central Civil Services (Revised Pay) Rules, 2008 are

as below:-

WP(C) No.116 /2013 Page 6 "REVISED PAY SCALES FOR CERTAIN COMMON CATEGORIES OF STAFF"

Section I

(i) The revised pay structure mentioned in Column (5) and (6) of this part of the Notification for the posts mentioned in Column (2) have been approved by the Government. The initial fixation as on 1.1.2006 will be done in accordance with Note 2 below Rule 7 of this Notification.

(ii) On account of merger of pre-revised pay scales of Rs.5000-

8000, Rs.5500-9000 and Rs.6500-10500, some posts which presently constitute feeder and promotion grades will come to lie in an identical grade. The specific recommendations about some categories of these posts made by the Pay Commission are included Section II of Part B. As regards other posts, the posts in these three scales should be merged. In case it is not feasible to merge the posts in these pay scales on functional considerations, the posts in the scale of Rs.5000-8000 and Rs.5500-9000 should be merged, with the post in the scale of Rs.6500-10500 being upgraded to the next higher grade in pay band PB-2 i.e. to the grade pay of Rs.4600 corresponding to the pre-revised pay scale of Rs.7450-11500. In case a post already exists in the scale of Rs.7450-11500, the post being upgraded from the scale of Rs.6500-10500 should be merged with the pos in the scale of Rs.7450-11500.

(iii) Posts in the scale of Rs.6500-10500 carrying minimum qualification of either Degree in Engineering or a Degree in Law should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.

(iv) Posts of scientific staff in the scale of Rs.6500-10500 carrying minimum qualification of engineering degree or a post- graduate degree should also be upgraded and placed in the scale of Rs.7450-11500 corresponding to the revised pay band PB-2 of Rs.9300-34800 along with grade pay of Rs.4600.

(v) Upgradation as in (ii) above may be done in consultation with Department of Expenditure, Ministry of Finance. Regarding

(iii) and (iv) above, upgradation may be done by the Ministries

WP(C) No.116 /2013 Page 7 concerned in consultation with their Integrated Finance.

                                      Section II
                                                                          (In Rupees)
Sl.            Post            Present   Revised Pay     Corresponding      Pare No. of
No.                             Scale       Scale         Pay Bank &        the Report
                                                           Grade Pay
                                                         Pay     Grade
                                                         Bank     Pay
(1)             (2)        (3)                (4)         (5)     (6)           (7)
 I    OFFICE STAFF IN THE
      SECRETARIAT*
 1    Section Officer/PS/ 6500-          7500-12000      PB-2     4800
      equivalent          10500          8000-13500      PB-3     5400         3.1.9




                                            (on                     (on       (Modified
                                       completion               completion by Govt.)
                                         of four                of 4 years)
                                          years)

This scale shall be available only in such of those organizations/services which have had a historical parity with CSS/CSSS. Services like AFHQSS/AFHOSSS/RBSS and Ministerial/Secretarial posts in Ministries/Departments organisations like MEA, Ministry of Parliamentary Affairs, CVC, UPSC, etc. would therefore be covered. II. OFFICE STAFF WORKING IN ORGANISATIONS OUTSIDE THE SECRETARIAT

1. Head Clerk/ 4500-7000 6500-10500 PB-2 4200 3.1.14 Assistants/Steno 5000-8000 Gr.

       II/equivalent
2.     Administrative     7500-        7500-12000               4800
       Officer Grade      12000        (entry grade PB-2
       II/Sr. Private                  for fresh                             3.1.14
       Secretary/                      recruits)                5400
       equivalent                      8000-13500               (on
                                       (on                      completion
                                       completion               of 4 years)
                                       of four




WP(C) No.116 /2013                                                           Page 8
                                         years)
III    ACCOUNTS STAFF BELONGING TO UN-ORGANIZED                                 3.8.5
       ACCOUNTS CADRES

The existing relativity between the accounts related posts outside organized accounts cadres and ministerial posts will be maintained and the accounts staff belonging to unorganized Accounts cadres shall be extended the corresponding replacement Pay Band and grade pay.

IV     ARTISTS
1      Senior Artist      6500-         7450-11500 PB-2          4600           3.8.6
                          10500
V      CANTEEN STAFF
1      Posts of           All the posts of canteen staff in Group 'D' will be   3.8.7

Canteen Staff in placed in the revised Pay Band PB-1 along with the pre-revised grade pay of Rs. 1800 once the staff occupying Group 'D' pay these posts is suitably retrained and made multi-

       scales             skilled.
VI     DRAWING OFFICE STAFF
1      Chief              6500-         7450-11500 PB-2          4600           3.8.9
       Draughtsman        10500
VII    ELECTRONIC DATA PROCESSING (EDP) STAFF
1      Data Processing 6500-            7450-11500 PB-2          4600           3.8.11
       Assistant          10500
VIII   FIRE FIGHTING STAFF
1      Firemen            2610-3540 3050-4590            PB-1    1900
2      Leading            3050-4590 3200-4900            PB-1    2000
       Fireman
3      Station Officer    4000-6000 4500-7000            PB-1    2800
4      Asstt.             5000-8000 6500-10500 PB-2              4200
       Divisional                                                               3.8.12

8. Learned counsel for the respondent submitted that the findings of

CAT are un-exceptionable. It was argued that the Pay Commission

recommendations, to maintain a difference in the pay band of those working

in Secretariat services as compared with those in non-Secretariat services

was real and consequently, Coast Guard officials working above the post of

WP(C) No.116 /2013 Page 9 Assistant, cannot claim parity of pay scales with similar level of officials in

the Secretariat Services as a matter of right. It was emphasised that mere

historical parity could not efface existing disparities, wherever they were

found. The learned counsel submitted in this regard the Pay Commission

was alive to all the circumstances and had taken into account representations

of concerned parties as well as the existing Rules before recommending that

those working in non-Secretariat Services should not be given parity with

those working in the Secretariat services.

9. This Court has carefully considered the submissions. It is evident

from the relevant extracts of the Pay Commission's recommendations that

even though the subsequent portion of its report (paragraphs 3.1.14

onwards) do mention that historical parity need not necessarily be protected

yet the fact remains that the earlier portions i.e. para 3.1.9, which has been

extracted previously in this judgment, - had specifically carved out the

services such as the Coast Guard as exceptions and maintained the pre

existing parity with members of the Central Secretariat services and those in

the armed forces headquarters. That this recommendation was indeed acted

upon and Rules were appropriately amended to preserve the parity

recommended by the Pay Commission, is evident from the Recruitment

WP(C) No.116 /2013 Page 10 Rules 2008, Extracts of the CSS (Revised Pay) Rules, 2008 - made effective

from 1st January, 2006 - clause (v) along with table extracted earlier, lend

force to the petitioner's submission that in fact parity which existed has

been preserved under the Rules. Such being the case, the respondent's

contention, which found favour in the impugned order, is unsupportable in

law.

10. In addition to the above reasons, the Court also notices that the

respondents position is further assailable by the fact that other non

secretariat organisations such as Central Information Commission, Planning

Commission, Central Reserve Police Force, Central Election Commission

and the CAT itself had shown the readiness/willingness to provide for higher

pay scales as has been sought for by the petitioners in this case. Indeed,

similar officials, employees above the rank and status of 'Assistant including

Section Officers' are not members of any Secretariat Services. In those

organisations, the employees who do receive such higher pay (sought for by

the petitioners here) are also equally members of non-secretariat services.

The petitioners therefore cannot be discriminated. For this reason, the

position taken by the respondent is found to be arbitrary.

11. In view of the above discussion, this Court is of the opinion that the

WP(C) No.116 /2013 Page 11 impugned order of the CAT cannot be sustained and it is accordingly, set

aside. The directions sought for by the petitioners in OA no.143/2004 are

granted. The respondents are directed to make consequent orders of pay

fixation and release the difference of pay and emoluments to the petitioners

within six weeks from today. The writ petition is allowed in these terms.

No order as to costs.

S. RAVINDRA BHAT, J (JUDGE)

NAJMI WAZIRI, J (JUDGE) SEPTEMBER 6, 2013 RN

WP(C) No.116 /2013 Page 12