S. K. Mathur vs The President Secretariat ...
2014 Latest Caselaw 1111 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Reserved on: 21st January, 2014
%                                           Date of Decision: 3rd March, 2014

+      W.P. (C) 8417/2011

       S. K. MATHUR                                            ..... Petitioner
                                 Through:   Ms. Jyoti Singh, Sr. Advocate with
                                            Mr. Vaibhav Kalra, Advocate.

                        versus

       THE PRESIDENT SECRETARIAT REPRESENTED BY THE
       SECRETARY AND ANR.                   ..... Respondents
                     Through: Mr. M. K. Bhardwaj, Advocate.


CORAM:
MR. JUSTICE S. RAVINDRA BHAT
MR. JUSTICE R.V. EASWAR


R.V. EASWAR, J.

1. The petitioner in these proceedings taken under Article 226 of the

Constitution of India challenges the order passed by the Central

Administrative Tribunal, Principal Bench, New Delhi on 02.02.2010 in

O.A. No.2788/2008.

2. The petition has been filed this way. The petitioner was appointed

as Assistant Director (Horticulture), CPWD. He was thereafter sent on

deputation to DDA in the same capacity, i.e. Assistant Director

(Horticulture). He was then sent to the President's Secretariat at the

President's Garden, Rashtrapati Bhawan on 19.12.1970, in the capacity of

Garden Superintendent. On 08.04.1974, he was permanently absorbed in

the President's Secretariat as Superintendent in the President's Garden

which is equivalent to that of the Deputy Director of Horticulture in

CPWD. The post was upgraded to the rank and pay scale of Director,

CPWD in the pay scale of Rs.3700-5000 w. e. f. 30.04.1996 as

recommended by the 4th Central Pay Commission. An order was passed

on 30.04.1996 by the President's Secretariat to this effect and it is

common ground that the order mentioned that upgraded scale was purely

personal to the petitioner and as and when he would leave the post, the

pay scale of the said post would be brought down to its earlier level.

3. When the 5th Central Pay Commission's report came, the

President's Secretariat vide office order dated 22.10.1997 revised the pay

scale for the post of Superintendent at Rs.12000-16500 w. e. f.

01.01.1996. As per this order, the petitioner was granted the pay scale of

Rs.12000-16500 and this is also not in dispute.

4. The petitioner retired from service on 01.04.1998 and his retirement

dues were calculated on the basis of pay scale of Rs.12000-16500. In the

meantime pursuant to certain representations, a revised recommendation

was made by the 5th Central Pay Commission according to which the pay

scale for the post of Director of Horticulture and Additional Director of

Horticulture in CPWD was upgraded to Rs.14300-18300 w. e. f.

01.01.1996 as per the decision taken by the Ministry of Finance. Office

orders were accordingly passed on 06.10.1999 and 28.08.2001.

5. The petitioner, based on the revised recommendation of the 5 th

Central Pay Commission and the aforesaid office orders made several

representations to the President's Secretariat seeking upgradation of his

pay scale to Rs.14300-18300 w. e. f. 01.01.1996 and for calculation of his

retirement dues on that basis. These representations were rejected by the

President's Secretariat by several orders, the last of which was dated

13.06.2008.

6. Aggrieved by the same, the petitioner filed O.A. No.2788/2008

before the CAT under Section 19 of the Administrative Tribunal's Act,

1985 praying for a declaration that the order passed by the first respondent

was null and void and for issuance of appropriate orders to the

respondents to refix the revised pay scale of the petitioner at Rs.14300-

18300 w. e. f. 01.01.1996 and to pay all consequential benefits, including

retirement benefits on the basis of the revised pay scale and pay the same

along with interest @ 10% per annum from 01.01.1996 till payment.

7. The Central Administrative Tribunal vide the impugned order

rejected the application filed by the petitioner and dismissed the same.

The reasoning of the Tribunal runs like this. It is the prerogative of the

executive to fix the pay scale on the basis of the recommendation of the

Pay Commission and the power to interfere with the same is limited to

ensuring that there is no hostile discrimination. The nature of the work

carried out by the petitioner as Garden Superintendent in the President's

Secretariat is not similar to the nature of the functions of the Director/

Additional Director of Horticulture or the Superintending Engineer

working in the CPWD. Pay-parity presupposes that the work is equal and

an inexplicable pay differentiation alone can be looked upon as

discrimination against an employee which is absent in the present case

because of the difference in the nature of the duties. The argument of the

petitioner that on upgradation of the scale of the Director/ Additional

Director, Horticulture, CPWD to the higher scale of Rs.14300-18300 w. e.

f. 01.01.1996 automatically upgrades the pay scale of the petitioner also,

to that scale, is not correct because mere classification of an earlier pay

scale would not entitle the petitioner automatically to a higher scale and

cannot be the basis for claiming pay-parity. There is no complete and

wholesale identity between the two posts and merely because the

petitioner and the Director/ Additional Director of Horticulture were

carrying on identical work, they cannot be paid equally if there is no

complete or wholesale identity. Moreover, the executive has considered

the representation of the petitioner twice and turned it down and the

prerogative of the executive cannot be interfered with lightly as it would

upset the constitutional principle of separation of powers between the

three organs of the State. On this reasoning the OA was dismissed by the

Tribunal.

8. In support of its conclusion the Tribunal relied upon several

judgments of the Supreme Court.

9. Counsel for the petitioner submitted before us that the post of

Garden Superintendent in the President Secretariat is equivalent to that of

a Deputy Director in the CPWD and both were similarly situated and

involved identical work. It is pointed out that the upgradation benefit

which inured to the Additional Director of Horticulture at CPWD as per

the revised recommendations of the Central Pay Commission, were

withheld in the case of the petitioner despite the identity between the

nature of the functions of the two posts. It is further pointed out that the

upgradation recommended by the 3rd and 4th Central Pay Commissions

were awarded to the petitioner too and there was, therefore, no reason to

withhold the revised recommendation of the 5 th Central Pay Commission

upgrading the pay scale from Rs.12000-16500 to Rs.14300-18300.

10. Counsel for the respondents submitted that judicial restraint must

be employed in matters of upgradation of pay scales, paying due regard to

the theory of separation of powers as held by the Supreme Court in S. C.

Chandra & Ors. Vs. State of Jaharkhand & Ors., (2007) 8 SCC 279. It is

submitted that mere classification and grant of earlier pay scale is no

criterion for pay parity and that a mere difference in the pay scale does not

amount to discrimination. It is stated that the requirement for pay parity is

that both the groups should not only work in identical conditions, but

should also discharge equal and same duties as held by the Supreme Court

in State of Haryana vs. Tilak Raj, (2003) 6 SCC 123. It is accordingly

contended that the Tribunal rightly dismissed the application.

11. We have carefully considered the facts and material on record in

the light of the rival contentions.

12. The facts are not in dispute, except for the aspect that whether the

nature of duties of the petitioner is the same as those of the superintending

engineer who is working in the CPWD. That however, should not be

allowed to come in the way of granting relief to the petitioner as prayed

for because there are other overriding aspects compelling the grant of

relief to the petitioner. The petitioner's services were requisitioned by the

President's Secretariat in 1970. Had he continued in the CPWD itself,

which is his parent department, he would have become Director

(Horticulture) there. A letter dated 21st October, 1991 was written by the

Director of Horticulture, CPWD, New Delhi to the Under-Secretary

(Admn.), President's Secretariat, Rashtrapati Bhawan. This letter refers

to the steps for the advancement of the career of the petitioner herein.

The letter brings out the following facts in favour of the petitioner: -

(a) the petitioner being a Class-I officer, his services rendered as such

are normally to be given weightage as the post of the Garden

Superintendent in the President's Secretariat is not a cadre service;

(b) the comparison between the engineering services and agricultural

scientists may not be justified since these services have their cadre;

moreover, persons who had joined DDA as Section Officers

(Horticulture) after 1959 have become Directors of Horticulture at

least two years prior to the date of the letter - names of such

persons have been given in the letter which is Annexure P-2

(colly);

(c) Assistant Directors who were selected after the petitioner in the

DDA have also become Directors (Horticulture) and normally the

petitioner would have also become Director (Horticulture) in DDA

but for the President of India requisitioning his services by name;

had the petitioner joined DDA at that time he would have become

Director of Horticulture at least 5 to 6 years prior to the date of the

letter;

(d) The petitioner was promoted as Deputy Director in 1974 and

normally 5 years of service are required to become Director of

Horticulture - the petitioner has served as Deputy Director for

more than 15 years (three times more than the minimum period

required for becoming Director of Horticulture).

Highlighting these aspects the letter makes out a case for the promotion

of the petitioner as Director of Horticulture. The request however could

not be acceded to for the only reason that the President's Secretariat is

governed by its own rules-President's Secretariat (Recruitment and

Conditions of Service) Rules, 1976 and there is no post of Director

(Horticulture). The correspondence also indicates that the scale of the

petitioner was upgraded to that of Rs.3700-5000 which is the scale of pay

of the post of Superintendent's Gardens. Consequent upon the

recommendation of the 5th Central Pay Commission, the pay scale of the

Superintendent, President's Gardens was revised to Rs.12000-16500.

This pay scale was further revised to Rs.14300-18300 w.e.f. 1.1.1996 on

28.8.2001 by the CPWD where the petitioner was earlier working. The

petitioner retired on 1.4.1998 after 27 years of meritorious service in the

Rashtrapati Bhawan and his pension benefits were calculated on the basis

of the scale of Rs.12000-16500. No plausible reason has been given by

the respondents as to why the pensionary benefits available to the

petitioner should not be computed on the basis of the pay-scale of

Rs.14300-18300 which is nothing but a revision of the earlier pay scale of

Rs.12000-16500 to which the petitioner was undoubtedly entitled and on

the basis of which his retirement benefits were calculated and given. In

the representation given by the petitioner to the President's Secretariat,

Rashtrapati Bhawan, a copy of which is available on record (Annexure

P9-colly), the petitioner has set out a chart at para 20 from which it is

seen that Addl. Directors of Horticulture who were given the scale of

Rs.3700-5000 (pre-revised) were given the revised pay scale of

Rs.12000-16500 as recommended by the 5th Central Pay Commission

w.e.f. 1.1.1996 and they were further given the revised pay scale of

Rs.14300-18300 pursuant to the revision orders dated 23.9.1999 and

2.7.2001, again with retrospective effect from 1.1.1996. It is the

petitioner's claim that these Additional Directors and Directors were

junior to him in service and had he continued in the CPWD, there would

have been no objection to the grant of the pensionary benefits on the basis

of the upgraded and revised pay scale of Rs.14300-18300 w.e.f. 1.1.1996.

The petitioner, in our opinion, cannot be placed in a worse position

despite his services being specifically requisitioned by the President's

Secretariat. It is not irrelevant to note that the work of the petitioner has

been commended by the President of India. The petitioner had put in 27

years of service in the President's Garden. Even his lien with the

Horticulture Department, CPWD was terminated on 8.4.1974.

13. The respondents rely on the letter dated 16.4.2002 issued by the

President's Secretariat to the petitioner which says that the pre-revised

scale of pay of Rs.3,700 which was granted to him with effect from

30.4.1996 was "on personal basis and not on functional basis". It

therefore says that his pay in the corresponding revised scale of pay of

Rs.12,000-16,500- has been correctly fixed and that the upgraded pay

scale of Rs.14,300-18,300 payable to the Superintending Engineers are

not applicable to him as Superintendent of the President's Garden.

According to the memorandum, the post held by the petitioner cannot be

equated with the Superintending Engineer or Director of Horticulture in

CPWD. We are unable to see the logic of the memorandum. The fixation

of the petitioner's pay scale at Rs.3,700-5,000, if it is on personal basis

and not on functional basis, ought to have been taken to its logical

conclusion. The petitioner was also given the corresponding revised pay

scale of Rs.12,000-16,500 on the basis of the 5th Pay Commission Report.

But when this pay scale was upwardly revised to Rs.14,300-18,300, the

respondents have refused to calculate the retiral benefits of the petitioner

on that basis which is un-understandable. The respondents rely on

annexure R-2 which is a communication dated 17.1.2003 in which the

Ministry of Finance was requested to consider the representation of the

petitioner. From this communication, it is seen that earlier the Ministry

of Finance had rejected the petitioner's representation on the ground that

the issue has to be examined on the basis of comparison of the post held

by the petitioner with the post existing in CPWD, having due regard to the

provisions of the recruitment rules of both the posts and the duties and

responsibilities attached to them. In response to the aforesaid view of the

Ministry of Finance, the President's Secretariat in the communication

dated 17.1.2003 enclosed copies of the recruitment rules relating to the

post of Superintendent, President's Garden and made a request to the

Ministry of Finance to examine whether the request of the petitioner can

be considered. By a communication issued on 7.7.2003 the Ministry of

Finance intimated the President's Secretariat that the proposal has been

considered and "it has, however, not been found feasible to agree to the

proposed". Subsequent representations had also met the same fate. When

once the petitioner was given the pay scale equivalent to that of the pay

scale of the Additional Director of Horticulture (i.e., 12,000-16,500), we

are inclined to think that there was implicit recognition of the fact that the

nature of the duties and responsibilities of both the petitioner and the

Additional Director of Horticulture in CPWD was the same. If that is so,

the revision of that pay scale on 2.7.2001 to Rs.14,300-18,300 should

logically follow and cannot be denied.

14. In the aforesaid circumstances, we are of the view that the

petitioner's writ petition has to succeed. We hold accordingly and direct

the respondents to calculate the retirement benefits of the petitioner on the

basis of the pay scale of Rs.14,300-18,300 and also grant him arrears of

pay on that basis from 1.1.1996 to 31.03.1998 (i.e. date of retirement).

The petitioner would also be entitled to interest on such arrears from

1.1.1996 till the date of realisation of the amount of the arrears, @ 10%

p.a.. The writ petition is allowed in the aforesaid terms.

(R.V. EASWAR) JUDGE

(S. RAVINDRA BHAT) JUDGE MARCH 03, 2014 hs/vld/bisht