AI Structured Summary
Not yet generated for this judgment
Judgment
Pradeep Kumar, Member (A)
There are 14 applicants. All except one (applicant No.13) had already retired from the rank of Dy. Secretary (DS) in Government of India when OA was filed. Applicant No.13 was still in service as DS when OA was filed, however, he would also have retired by now. They all were in Central Secretariat Service (CSS) and had been posted in various Ministries.
Recruitment takes place to CSS at Assistant level. In due course, they get promoted from Assistant to Section Officer (SO), to Under Secretary (US), to DS and thereafter to Director. The hierarchy from lower level to higher levels in a Ministry is that two to three DS, who each head a Division, report to one Joint Secretary, who heads a Wing.
In due course of time, to address stagnation, certain cadre restructuring took place in various cadres including CSS. With this, some posts of Directors as well as Joint Secretary (in-situ) were created. Thereafter, some Divisions came to be headed by Joint Secretary (in-situ) or Directors or DS and with this, these posts were treated to be interchangeable depending on availability and suitability of personnel to head a Division.
With a view to appreciate the relativities, the pay scales over various CPCs for DS, Director and Joint Secretary are as under. The corresponding scales of Lt. Col. in Army are also shown, as applicants had pleaded for parity with them also.
Post in Army
Post on civil side
CPC
Lt. Col.
Dy. Secretary
Director
Jt. Secretary
3rd
Acting
1500-1700
1200-
2000
2000- 2250
2500- 2750
Substantive
1700-1900
Time Scale
1800
4th
Combined running scale from 2nd Lt. to Brigadier was 2300- 5100. In addition Rank Pay for Lt. Col. was 600/-
3700- 5000
4500- 5700
5900- 6700
5th
13500-17100 + Rank Pay Rs.1600
12000- 16500
14300- 18300
18400- 22400
6th
PB-4 + GP 8000
PB-3 + GP 7600
PB-4 + GP 8700
PB-4 + GP 10000
Note: PB-3 is Pay Band Rs.15600-39100 and PB-4 is Pay Band Rs.37400-67000
7th
L-12A, 116700-210700 +Military Service Pay
L-12, 78800- 209200
L-13, 123100- 215900
L-14, 144200- 216600
Applicants plead that historically, there was not much difference in pay structure of DS and Director upto 5th CPC. They also pleaded that it was perhaps keeping this in view that 6th CPC recommended the same pay scale PB-3 for DS as well as Director, with only difference being made was in respect of Grade Pay. Thus, 6th CPC recommended following pay scale:
Dy. Secretary
PB-3 + GP Rs.6600
Director
PB-3 + GP Rs.7600
However, while approving both were improved as shown in table in para 2 above. They also plead that 6th CPC recommended same pay band for Army Colonel, Lt. Colonel, DS and Director.
The Committee of Secretaries considered these recommendations. The DS and Lt. Col. were both granted same pay scale i.e. PB-3 + GP Rs.7600 and this was approved by Govt.
3.1 Later on, there were certain reference made by Ministry of Defence for reviewing the pay structure of Lt. Cols. and they were given the pay scale of PB-4 + GP Rs.8000, while Col. was granted the pay scale of Director.
Applicants are aggrieved that with Govt. orders on 6th CPC (para-2 above), the historical relativity between DS and Director was disturbed adversely for DS. At the same time, they are also aggrieved that historical relativity of DS with Lt. Col., was also disturbed and in that adversely for DS (para 3.1 above).
The CSS forum made many representations for removal of this disparity. A proposal was first made by DOP&T on 18.03.2009 to refer the issue to Anomaly Committee (AC). It was, however, found that issues related to Group-A officers are not to be referred to AC. Thereafter, DOP&T made certain recommendations for examination by Department of Expenditure on 22.09.2011. The same read as under:
"The proposal under consideration on this file is about grant of PB-4 to the Deputy Secretaries of CSS. Earlier, the representations of the CSS Forum in this regard were examined in the preceding notes (pp.1-5/N. and pp. 8-11/N) and a proposal was referred to the Ministry of Finance for grant of PB.4 to CSS Deputy Secretaries. The proposal has not been agreed to by the Ministry of Finance (pp.6-7/N and p. 12/N).
On a representation from CSS Group A Officers Association, the matter has been reconsidered and Hon'ble MOS (PP) has directed that the proposal may be referred to the Ministry of Finance again.
xxx xxx xxx
It may be seen that after the implementation of the recommendations of the 6th CPC with modifications there is a huge gap in the pay of a Deputy Secretary and a Director, the Pay Bands being different. Earlier the difference in pay was minimal. Further, historically, the Under Secretaries were being allowed the benefit of two increments on their promotion to the post of Deputy Secretary. This was continued after the 6th CPC with the approval of the Department of Expenditure.
8.1 Earlier parity was being maintained between the pay of a Deputy Secretary of CSS and Lt. Colonel of the Defence Forces, which has been disturbed after the 6th CPC.
xxx xxx xxx
8.2 In the context of the dispensation of 15% of Group A posts at the level of Director, it may be submitted that during the discussion of the report of the second Cadre Restructuring Committee in the DOP&T, a proposal for grant of NFSG to Deputy Secretaries with five years approved service subject to a maximum of 15% of Group A posts at par with CSSS was included as one of the proposals for consideration by the Cabinet. In the meeting of the Group of Officers held on 14.1.2010, the Ministry of Finance (D/Expenditure) mentioned that 15% posts at the NFSG level, corresponding to the level of Directors in CSS, had already been created in CSSS, and on the same analogy there was no objection to allowing the same to the CSS also. However, later on, after the meeting of the Committee of Secretaries on 9.2.2010, this proposal was withdrawn. It was decided that combined strength of DS/Director/Sr. Director (late changed to JS (in situ) in CSS be fixed at 600 with inter-se flexibility but with a ceiling of 40 for Sr. Directors (JS (in situ) and 220 for Directors.
In the light of the arguments now put forth by the CSS Group A officers Association, the matter may be referred to the Ministry of Finance (Department of Expenditure), as directed by the Hon'ble MOS(PP), for reconsideration of their earlier decision."
(Emphasis supplied)
5.1 This proposal was examined by Ministry of Finance and not agreed to. The relevant note dated 09.03.2010 reads as under:
"Department of Personnel & Training may please refer to their File No.4/1/2009-CS.I(P) seeking placement of Deputy Secretaries in a higher pay band.
The matter has been considered in this Department. In the context of the proposal to place Deputy Secretaries in the pay band PB-4, it is stated that Sixth CPC had recommended the following revised pay structure in the case of Under Secretaries, Deputy Secretaries, Directors and DIGs on the civilian side and Majors, Lt. Colonels, Colonels and Brigadiers on the Defence Forces side:-
Civilian Officers
Defence Forces Officers
Designation
Pre-revised scale
Revised Pay Structure
Rank
Pre-revised scale
Revised pay Structure *
Under Secretary/ equivalent
10000- 15200
PB-3 grade pay of 6100
Major/ equivalent
11600- 14850 plus Rank pay 1200
PB-3 grade pay of 6100
Deputy Secretary/ equivalent
12000- 16500
PB-3 grade pay of 6600
Lt. Colonel/ equivalent
13500- 17100 plus Rank pay 1600
PB-3 grade pay of 6600
Director/ equivalent
14300- 18300
PB-3 grade pay of 7600
Colonel/ equivalent
15100- 16350 plus Rank pay 2000
PB-3 grade pay of 7600
DIG/ equivalent
16400- 2000
PB-3 grade pay of 8400
Brigadier/ equivalent
16700- 18050 plus Rank pay 2400
PB-3 grade pay of 8400
* Sixth CPC recommended grant of Military Service Pay to Defence Forces Officers from the rank of Lieutenant to the rank of Brigadier @ Rs.6000 p.m.
Note: The pay band PB-4 recommended by the Sixth CPC was Rs.39200-67000.
However, based on the recommendations of the Committee of Secretaries headed by the Cabinet Secretary, which was constituted to process the Report of the Sixth CPC, the grade pay recommended by the Commission for middle level officers from the grade pay of Under Secretary to the grade of DIG was enhanced. Further, keeping in view the demands raised by the Defence Forces, it was decided to place Brigadiers/DIGs/equivalent and Directors/ Colonels/equivalent in the pay band PB-4. In order to accommodate more pre-revised pay scales as compared to the recommendations of the Sixth CPC, the CoS also recommended that the minimum of PB-4 should be modified from Rs.39200 to Rs.37400.
After the implementation of Sixth CPC's recommendations in August 2008, a second set of demands emanated from the Services Headquarters regarding placement of Lt. Colonels/equivalent in the pay band PB-4. The Services Headquarters and the MoD argued that Lt. Colonels were never at par with Deputy Secretaries. After examining the demands of the Services, Government decided that Lt. Colonels be granted grade pay of Rs.8000 in the pay band PB-4. This revised pay structure was placed between the revised pay structure approved by the Government for Deputy Secretaries and Directors. In this connection, it may be noted that the pre-revised scale of Lt. Colonel was Rs.13500-17100 plus rank pay of Rs.1600, whereas the pre-revised scale of Deputy Secretary was Rs.12000-16500. Thus, prior to Sixth CPC, even without taking into account rank pay, the pay scale of Lt. Colonels/equivalent was higher than that of Deputy Secretary but lesser than that of Director.
Although the Sixth CPC had recommended parity in the pay scales of Lt. Colonels/equivalent and Deputy Secretaries/ equivalent, the Defence Forces represented against this new equivalence and based on the relativities existing prior to Sixth CPC, the Government had to grant Lt. Colonels/equivalent revised pay structure which was higher than the revised pay structure granted to Deputy Secretaries, but lower than the one granted to Directors. Accordingly, if this precarious balance achieved after great difficulty and effort is once again disturbed by placing Deputy Secretaries in PB-4, it will surely lead to another spate of demands from Defence Forces to grant a much higher pay scale to Lt. Colonels/equivalent. Therefore, any disturbance in the relativities that have come to exist after the implementation of the then External Affairs Minister's Report will have grave consequences.
Also, if the grade pay of Deputy Secretaries is also placed in the pay band PB-4, either the minimum of the pay band will have to be further reduced, or it will again lead to 'bursting' at the maximum.Both the eventualities are unacceptable, since if the minimum of the pay band PB-4 is further reduced, it will lead to modification of pay and consequent re-fixation of pay already fixed in the case of all Government servants at the level of Deputy Secretary and above as on 1.1.2006 (many of whom have since retired). Similarly, if the pre-revised minimum of Deputy Secretary's scale i.e. Rs.12000 is equated with Rs.37400 (the present minimum of the pay band PB-4), it will again lead to re-fixation of all concerned and consequent unintended upward revision in the pay and pension of Government servants. This will have substantial financial implications.
In view of the foregoing, it is not feasible to grant the pay band PB-4 to Deputy Secretaries/equivalent who were in the pre-revised scale of Rs.12000-16500. However, this Department has already agreed to the proposal of DoPT to grant additional monetary benefits and improve the career prospects of Deputy Secretaries working in the Central Secretariat. Vide endorsement dated 12.2.2010, this Department had already advised DOPT (the cadre controlling department of CSS) that on their promotion from the grade of Under Secretary to Deputy Secretary, the pay of CSS officers may be fixed by granting them an increase of two increments in the pay band. This amount will roughly come to Rs.2800. Further, as part of the cadre restructuring proposals for the CSS, this Department has agreed to recommendations of Sixth CPC in the case of CSSS under which 15% of the posts of PPS and Senior PPS have been placed in the pay band PB-4 and granted grade pay of Rs.8700. After the implementation of this proposal in the case of CSS, 15% of the posts of Under Secretary and Deputy Secretary will be placed in Director's pay scale in the pay band PB-4, as a result of which Deputy Secretaries of CSS will take about 5 years to get the Director's grade which is in PB-4.
This issues with the approval of Secretary (Expenditure)."
(Emphasis supplied)
Applicants are aggrieved that while the 6th CPC which was the expert body, studied the whole matter and made recommendations to put DS and Lt. Col. at par, the Govt. while issuing orders, disturbed this parity without any justification. Their relativity vis-à-vis Director on one hand and vis-à-vis Lt. Col. on the other hand, needs to be restored. Hence this OA.
They seek directions to be granted the pay scale of PB-4 + GP Rs.8000 at par with Lt. Col. alongwith arrears for a period of three years prior to filing this OA and notional fixation and revision of pension. Certain other reliefs are also sought.
Applicants rely on 6th CPC recommendations and the warrant of precedence issued by Ministry of Home Affairs on 20.02.1968. As per this warrant of precedence the equivalent ranks are shown as under:
Central Secretariat
Army
Joint Secretary
Major General
Director
Substantive (sic)
Deputy Secretary
Acting Brigadier
Under Secretary
Substantive Lt. Colonel /Colonel
Section Officer
Substantive Major and Officiating Major
Officiating Section Officer
Substantive Captain
Per contra, respondents opposed the OA. Counter was submitted on 25.10.2016. Following specific averment was made:
"2. That there is a clear distinction between the posts of Deputy Secretary and Director, the latter being a senior post. So although there is inter-se-flexibility amongst the posts of Deputy Secretary, Director and Joint Secretary (in-situ), the element of hierarchy cannot be ignored."
It was also brought out that the grievance was examined but could not be agreed. Detailed reasons are brought out in the Note by Ministry of Finance (para 5.1 supra).
Applicants submitted rejoinder and averred that duties assigned to DS and Director are qualitatively identical and they are inter-changeable also. The averments in OA were repeated with the plea that OA be allowed.
Matter has been heard at length. Shri Sudarshan Rajan, learned counsel represented the applicants, Shri Duli Chand and Shri Ranjan Tyagi, learned counsel represented the respondents.
The mode of entry for the applicants is to CSS where direct entry takes place at the level of Assistant which is a Group 'B' non-gazetted post. The Assistants in CSS, after a few years of service gain eligibility for being promoted as SO. There is a Limited Departmental Competitive Examination (LDCE) channel also for selection amongst the Assistants for promotion and posting as SOs. With this process, the Assistants get promoted to the post of SO which is a Group 'B' gazetted post. The SO gets promoted to the post of US which is a Group 'A' gazetted post, and thereafter as DS and so on for higher level posts.
As against this, the mode of recruitment of Army Officers is at Lieutenant level which is a Group 'A' gazetted post and it carries a pay scale of PB-3+GP Rs.5400. They seek their promotions thereafter in the steep pyramidical hierarchy of Armed Forces.
Army officers superannuate much younger in keeping with the operational need to keep the Army profile younger. It may be noted here that "Col." superannuates at 54 years of age unless he is promoted as Brigadier. Therefore, the mode of entry of civilian and Army officers, their conditions of service and age of superannuation are all very different. A comparison of civilian officers with those of Army officers is therefore totally misplaced.
These differences and the reasons why the different pay scales were warranted and were granted, are already summarized and highlighted in Ministry of Finance note referred in para-5.1 above and need no repetition. This note also brings out various improvements made in promotional prospects of CSS officers at various levels including DS.
The recommendations by 6th CPC for various posts in CSS, the orders as initially issued by Government and improvements made therein are summarized in table below:
Post
Recommended by 6th CPC
Approved by Govt. vide orders dated 29.08.2008
Further improvement approved by Govt.
Assistant
PB-2+GP4200
PB-2+GP4200
PB-2+GP4600 vide orders dated 16.11.2009
Section
Officer
PB-2+GP4600 & PB-2+GP5400 after four years of service
PB-2+GP4800 & PB-3+GP5400 after four years of service
Under
Secretary
PB-3+GP6100
PB-3+GP6600
Dy. Secretary
PB-3+GP6600
PB-3+GP7600
Director
PB-3+GP7600
PB-3+GP8700
Jt. Secretary (in-situ) & Jt. Secretary
PB-4+GP10000
PB-4+GP10000
Note: The pay bands as recommended and as approved are as under:
Pay Band
As recommended by 6th CPC
As approved
PB-2
Rs.8700-34800
Rs.9300-34800
PB-3
Rs.15600-39100
No change
PB-4
Rs.39200-67000
Rs.37400-67000
In this context, Tribunal notes that while the Pay Commissions are the expert bodies that go into the questions of pay, equivalence and parity etc. within a service as well as across services and make their recommendations, yet these recommendations are not binding on the Government. The Government is empowered to take a considered view and act on these recommendations after taking relevant factors into account.
The Tribunal, however, notes that while issuing the orders on 6th CPC, there were many improvements made by Government.
In this regard, Hon'ble Apex Court in Union of India v. P.V. Hariharan, (1997) 3 SCC 568, observed as under:
"Before parting with appeal, we feel impelled to make a few observations. Over the past few weeks, we have come across several matters decided by Administrative Tribunals on the question of pay scales. We have noticed that quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a pay Commission. Change of Pay scale of a category has cascading effect. Several other categories similarly situated, as well as those situated above the below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of "equal pay for equal work" is all being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders passed by single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too. It would be in the fitness of the things if all matters relating to pay Scales, i.e. matters asking for a higher pay scale or an enhanced pay scale, as the case may be on one or the other ground, are heard by a Bench comprising at least one Judicial Member. The Chairman of the Central Administrative Tribunal and the Chairmen of the State Administrative Tribunals shall consider issuing appropriate instructions in the matter."
(Emphasis supplied)
Further, the relativity within service and across services is not something that will ever remain unchanged over various Central Pay Commissions and period of time. With passage of time, the conditions may change, warranting a different set of instructions.
In this connection, Hon'ble Apex Court in P.U. Joshi & Ors. Vs. Accountant General, Ahmedabad and Others, [2003 (2) SCC 632] has taken a view as under:-
"10. We have carefully considered the submissions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service."
(Emphasis supplied)
Further, the Tribunal recalls that 6th CPC made recommendations for grant of PB-3+GP Rs.6600 to DSs (para-15 supra). However, while approving the same, these were improved to PB-3+GP Rs.7600. Even otherwise, there have been many improvements in the career prospects and avenues of channel of promotion of CSS officers by way of cadre restructuring, grant of two increments in pay band etc., as has already been noted by the Ministry of Finance in their note in para-5.1 above.
With this in view, and a glance at table in para-15 above, the Tribunal does not find any hostile discrimination towards the applicants who were working as DSs, which is the basic requirement for any interference in orders in respect of pay, as was noted by the Hon'ble Apex Court (para 16 supra). On the contrary, the recommendations by 6th CPC were improved while issuing orders.
The applicants have also relied upon the warrant of precedence issued in the year 1968 (para-8 supra). One note written in this very warrant of precedence, as reproduced below, is also of relevance, especially in regard to the pay structure of civilian officers and the Army officers:
"Note: The above rank structure had been evolved based on the actual work load duties, responsibilities, functions and administrative control each post carried and not with reference to pay scales. It is known fact that service personnel will have to be given better pay scales even at Junior level as to compensate their early retirement and their promotion prospects cannot be compared with that of their civilian brothers."
(Emphasis supplied)
The plea of the applicants for equivalence with Lt. Col. in Army, in regard to their pay is, therefore, totally misplaced and without any basis.
In view of the foregoing, Tribunal is not finding any merit or substance in the grievance raised in the instant OA and it is liable to be dismissed. Accordingly, OA is dismissed, being devoid of merit.
In view of the above, all Pending MAs also stand disposed off.
No costs.