Mahanagar Telephone Nigam ... vs Mr. Pradeep Kumar Biswas
2014 Latest Caselaw 4860 Del

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
                                               Reserved on: 26.08.2014
                                             Pronounced on: 26.09.2014

+      W.P.(C) 3716/2013, C.M. NOS. 6953-6955/2013
       MAHANAGAR TELEPHONE NIGAM LIMITED
                                                 .....Petitioner
                  Through : Sh. Ravi Sikri, Sr. Advocate with
                  Sh. Vaibhav Kalra, Advocate.

                           Versus

       MR. PRADEEP KUMAR BISWAS            ......Respondent

Through : Sh. M.K. Bhardwaj, Advocate.

CORAM:

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT

% C.M. NO. 6954/2013 Allowed, subject to all just exceptions.

W.P.(C) 3716/2013, C.M. NOS. 6953/2013 & 6955/2013

1. This is a writ petition under Article 226, requesting this Court to quash the order of the Central Administrative Tribunal (CAT), dated 18.03.2013, in O.A. No. 227/2009, in which the CAT rejected the arguments of the petitioner for downgrading the pay of the Respondent.

2. The brief facts are that the Respondent joined the services of

W.P.(C) 3716/2013 Page 1 Delhi Telecom - which subsequently became the MTNL - as a "Technical Supervisor", a C-category cadre post, on the pay scale of `425-700/-, in 1981. In 1993, the Respondent was promoted to the post of Automobile Engineer, on the pay scale of ` 2000 - 3500. His pay-scale (2000 - 3500) was the same as that of the Assistant Engineer/Sub-Divisional Engineer (AE/SDE), and involved the supervision of Junior Telecom Officers (JTOs).

3. On 1.1.1996, after the implementation of the 5th Central Pay Commission recommendations, the Respondent's pay was fixed in the scale of ` 7,500 to 12,000/-. Subsequently, however, the petitioner "re-fixed" the Respondent's pay in the `6500 -10500/- scale, claiming that it had committed a mistake in upgrading it to `7500-12000/-.

4. In 2003, the Respondent filed a Writ Petition before this Court, arguing that his pay had been wrongly downgraded. This Court held that because no Show Cause Notice had been issued to the Respondent, and because the recovery of the pay that had already been granted to him was contrary to law, the Petitioner's order withdrawing the Respondent's higher pay was illegal, and liable to be quashed.

5. Meanwhile, in 2003, the IDA Pay Scales replaced the CDA Pay Scales. Under the new pay scales, the old `6500 -10500/- scale was upgraded to `10750-16750/-, and the `7500-12000/- scale was upgraded to `13000 -18250/-.

6. Consequent to the order of the Court the petitioner issued the Show Cause Notice, and after representations were made by the respondent on 4.2.2005, the petitioner refixed the respondent's pay in the IDA Pay Scale of `8,600-14,600/-. Noticeably, the Junior

W.P.(C) 3716/2013 Page 2 Telecom Officers' (JTOs) were placed in the `10750-16750/- scale (corresponding to the old `6500-10500/-), and the Additional Engineers/Sub-Divisional Engineers were placed in the `13000 - 18250/- scale.

7. The Respondent filed O.A. No. 227/2009 before the CAT, challenging the Show Cause Notice, and seeking re-fixation of his pay-scale. On 14.7.2010, the CAT quashed the Show Cause Notice, and issued directions to the Petitioner not to recover the excess amount from the Respondent. The Petitioner challenged this decision before the High Court in W.P. (C) No. 7572/2010. The Court held that certain relevant facts had not been placed before the CAT, and observed that it would be appropriate for the Petitioner to file a review petition in that forum. The Petitioner's review petition was dismissed by the CAT on 23.5.2011. The Petitioner approached the Court again through a writ petition (W.P.(C)8958/2011). The Court set aside the CAT's order, and directed it to consider the documents placed on record by the Petitioner in its review petitioner. The CAT's order was pronounced on 18.03.2013, in which it upheld its earlier order of 14.7.2010. Aggrieved by that order, the Petitioner has filed the present writ petition before the Court.

8. The petitioner argues that the upgradation from `2000-3500/- pay scale to `7500 -12000/- was expressly limited to Sub-Divisional Engineers (SDEs) (i.e. Assistant Engineers), a "TES Group B" post. For all other posts, including that of Automobile Engineer, the upgradation was to the `6500 -10500/- scale. The petitioner further argues that the Respondent was promoted to the post of Automobile

W.P.(C) 3716/2013 Page 3 Engineer in the pay-scale of `2000 - 3500/-, while his substantive cadre continued to be that of Technical Supervisor, a Group C post. In any event, the Petitioner argues that Automobile Engineer is a "CGS Group B" (and not a "TES Group B") post, thus disentitling him from the upgradation. In addition, the Manpower Statement issued by the Petitioner also specified that Automobile Engineer was to be placed in the `6500 - 10500/- pay-scale. Consequently, the petitioner argued, it mistakenly fixed the Respondent's upgraded pay in the `7500 - 12000/- scale, and consequently, corrected it by downgrading.

9. These contentions have been rejected by the CAT. In its order dated 14.7.2010, the CAT observed that the Automobile Engineer's post was "analogous" to the Assistant Engineer's post, and also that it involved supervision of JTO employees. Consequently, it held that the Automobile Engineer post deserved to be on parity with the Assistant Engineer Post, and not in a pay-scale below JTOs.

10. Subsequently, in its order dated 18.03.2013, the CAT observed that in 1981-82, when the Respondent joined service, the posts of Automobile Engineer and Assistant Engineer (AE) were in the pay- scale `2000 - 3500/-, while that of a Junior Telecom Officer (JTO) was in the pay-scale `1640-2900/-. Furthermore, the JTOs were working under the supervision of the AEs. The JTOs were also upgraded to the `6500-10500/- payscale. Under the revised IDA pay scales, which replaced the old CDA pay scales, the Assistant Engineers were placed in the pay scale `13000 - 18250/- (corresponding to the old `7500 -12000/- pay-scale) bracket, the JTOs in the `10750-16750/- bracket, and the Respondent in the `8600-

W.P.(C) 3716/2013 Page 4 14600/- (corresponding to the old `6500 - 10500/- pay-scale) bracket. It therefore held that the original upgradation of the Automobile Engineer post to the `7500 -12000/- pay-scale was simply to maintain an existing parity with the Assistant Engineer post, which had also been upgraded from `2000-3500/- to `7500 -12000/-. Consequently, it rejected the petitioners' submissions.

11. The contentions in this case turn upon two important documents: the Central Civil Service (Revised Pay) Rules (based on the 5th Pay Commission Recommendations) and the clarificatory letter from the DoT.

12. The First Schedule to the Rules prescribes the revised pay scales for various posts except posts for which different revised scales are notified separately. The Schedule states that the pay-scale of `2000-3500/- is to be upgraded to the scale of `6500-10500/-. Subsequently, the general notification issued by the Ministry of Finance on the Fifth Pay Commission recommendations states that the pay of the JTOs stood upgraded from the scale of `1640-2900/- to `6500 - 10500/-, and that of SDEs was upgraded from `2000-3500/- to `7500 -12000/-. There is no specific exception for Automobile Engineers.

13. In a letter dated October 20, 1997, from the Department of Telecommunications, it was clarified that "there is no change in Recruitment Rules for the cadre of TES Group B. The revised pay scale of Rs. 7500 - 12000 to TES Group B as notified in Part C of the Ministry of Finance Notification may be implemented from 1.1.1996."

14. A perusal of these documents reveals that, as per the Pay

W.P.(C) 3716/2013 Page 5 Commission Recommendations, the general upgradation of the `2000

-3500/- pay scale was to `6500 - 10500/-. A specific exception - i.e., an upgradation to `7500 -12000/- was carved out for SDEs/AEs as TES Group B employees. Therefore, in order for the Automobile Engineer to avail of the `7500-12000/- pay scale, there must have either been a specific exception to that effect, or - following the clarification of the DoT - it must have been a TES Group B post.

15. Neither has the Tribunal found, nor did the Respondent demonstrate either of these requirements. In his reply, the Respondent states that the original upgradation to `7500-12000/- was justified because:

"parity between Automobile Engineers and other Engineering cadres was required to be maintained."

To substantiate this, the Respondent further states that "since the Respondent was the only Automobile Engineer in the Petitioner's Office, therefore no specific recommendation [of the Pay Commission] was made about the post of Automobile Engineer. However, since the analogous post of AE (T) was placed in the scale of Rs. 7500 - 12000, therefore the Automobile Engineer was also rightly placed in the scale of 7500 - 12000."

16. Further, the Respondent argues that it was:

"granted the scale of Rs. 7500 - 12000 as there was no difference between the nature of duties attached to the post of Automobile Engineer and AE"

and that the Automobile Engineer had a "higher responsibility" for "scrapping, purchasing and repair of vehicles."

17. In its order dated 14.07.2010, the CAT held that:

W.P.(C) 3716/2013 Page 6 "while functioning as Automobile Engineer, [the Respondent] was drawing the pay scale of Rs. 2000 - 3500 at par with SDE, and on this basis the DoT letter of 10.10.1997 when implemented the Vth Pay Commission recommendation for SDE the pay scale was Rs. 7500 - 12000. Accordingly, applicant was rightly placed in the said paid scale."

18. The CAT subsequently held that "an automobile engineer being analogous to AE(T) Applicant... was entitled to be given the pay scale of Rs. 13000 - 18250."

19. And in its order dated 18.03.2013, considering the additional materials on record that had been placed pursuant to the direction of the High Court, the CAT held that:

"it was only to maintain the parity in the pay scales of both these posts [i.e. Automobile Engineer and Assistant Engineer], the Respondents themselves have granted the scale of Rs. 7500 to 12000 to the Applicant... we do not find any wrong in the said decision of the Respondents."

20. It is, therefore, clear that at no point has the Respondent contended, nor the CAT held that:

(a) there was indeed a specific exception for Automobile Engineer to the general upgradation (following from the Pay Commission Recommendations) from `2000 - 3500/- to `6500 - 10500/-, as there had been for the AEs/SDEs;

(b) the Automobile Engineer was, specifically, a TES Group B post.

Rather, two justifications have been produced: (a) that because the Automobile Engineer was earning the same as the Assistant Engineer, there ought to have been an equivalent upgrade (in order to

W.P.(C) 3716/2013 Page 7 maintain "parity"); and (b) that the post of Automobile Engineer was "analogous" to the Assistant Engineer.

21. With respect to the first question, it is clear that "parity" in payment in itself cannot create a legal entitlement to an equal upgradation. In Sub-Inspector Roop Lal vs Lt. Governor, (2000) 1 SCC 644, the Supreme Court held that "equivalence of two posts is not judged by equal pay." Rather, the constitutional principle - as upheld in a number of Supreme Court judgments - is equal pay for equal work. This brings us to the second contention, which is that the two posts were analogous.

22. Sub-Inspector Roop Lal vs Lt. Governor (supra) cited the Constitution Bench decision of the Supreme Court in Union of India vs P.K. Roy, (1968) 2 SCR 186 for the proposition that equivalence depends on four factors: the nature and duties of a post; the responsibilities and powers exercised by the officer holding a post; the minimum qualifications; and salary. Furthermore, in Vice-Chancellor, L.N. Mithila University vs Dayanand Jha, 1986 (3) SCC 7, the Supreme Court held that equivalence depends upon the status and nature and responsibility of the duties attached to the two posts, and held that despite carrying the same pay, the post of Principal had higher duties and responsibilities than the post of a Reader.

23. This Court notes that neither the Respondent, nor the CAT have backed up the claim of analogousness or equivalence with any material. The question then becomes, who bears the burden of demonstrating equivalence? In Union Territory, Chandigarh vs Krishan Bhandari, (1996) 11 SCC 348, the Supreme Court clearly

W.P.(C) 3716/2013 Page 8 held that the burden to demonstrate the equivalence of two posts - and thereby make a claim of equal pay for equal work - is upon the applicant, and not upon the State. In that case, the claim of the applicant was rejected because he was unable to produce evidence to demonstrate that the qualifications for the two posts at issue were identical.

24. While in its Reply, the Respondent has stated that there was no difference between the nature of duties of the two posts, and that the Automobile Engineer had "greater responsibilities" than an Assistant Engineer, there has been no elaboration or demonstration of these claims. Therefore, the argument of equivalence cannot be accepted.

25. Hence, in the absence of a specific exception for the Automobile Engineer in the revised pay rules placing the post in the `7500 - 12000/- bracket, and in the absence of a proven equivalence between the Automobile Engineer and Assistant Engineer posts, the default upgradation of the `2000-3500/- pay scale to `6500 -10500/- must be applied to the post of Automobile Engineer. Consequently, the order of the CAT dated 18.03.2013 cannot be sustained, and is set aside. Parties are left to bear their respective costs.

S. RAVINDRA BHAT (JUDGE)

VIPIN SANGHI (JUDGE) SEPTEMBER 26, 2014

W.P.(C) 3716/2013 Page 9