Union of India and Others vs S. Ashok Kumar

Ramachandran, J.—By order dated 17-05-2005, the Central Administrative Tribunal, Ernakulam Bench in O.A.No.408 of 2004 had disposed of the case and a direction had been issued to the Union of India and the Central Administrative Tribunal, Ernakulam Bench to grant the benefit of the scale Rs. 5500-9000 to the applicant with effect from 01-01-1996 and to pay the arrears within two months from the date of the order. It had also been declared that the applicant would be entitled to promotion to the post of Assistant Library & Information Officer on completion of three years in the upgraded scale of Rs. 5500-9000. The direction was to the following effect:

"We also direct that in pursuance of Annexure A3 memo read with Para 55.180 of the Vth CPC Recommendations accepted by the Government, the applicant would be entitled to promotion to the rank of Assistant Library & Information Officer on completion of three years in the upgraded scale of Rs. 1640-2900 (5500-9000) as enjoined in the Review Committee Recommendations accepted by the Government way back in 1990. If the categorisation is accepted, and a qualified incumbent is in position, then grant of a legitimate benefit by upgrading the existing post of Junior Librarian to that of Assistant Library and Information Officer should pose no problem at all. The applicant however would be entitled to only deemed promotion to that post w.e.f. 1.1.1999 and would be entitled to actual financial benefits in terms of higher pay and increments accrued from 1-1-1999 notionally carried forward from the prospective date of actually joining the higher post".

This order is under challenge in the writ petition, filed at the instance of the Union of India as also the Administrative Tribunal, on the administrative side.

The applicant in the Original Application (respondent herein) is working as Junior Librarian in the Central Administrative Tribunal, Ernakulam Bench. According to him, he was aggrieved by the non-implemantation of the "accepted recommendations of the 4th and 5th Central Pay Commissions and consequent denial of scales of pay as applicable to Library staff of other Central Government Ministries/ Departments." He is a Postgraduate and holds Postgraduate degree in Library Science as well. While working as Sub Editor (Library) at the Central Reference Library, Calcutta, he had been selected by the Staff Selection Commission and appointed as Junior Librarian in the Central Administrative Tribunal, Ernakulam Bench with effect from 27-03-1992. He is presently accommodated in the replacement scale of pay of Rs. 5000-8000. According to him, a representation highlighting his grievances, addressed to the Chairman, Central Administrative Tribunal dated 10-10-2003, did not evoke response and the application before the Tribunal (O.A.No.408 of 2004) had been filed in the aforesaid circumstances. As could be seen from the representation, because of the non-implementation of the Office Memorandum dated 24-07-1990 follow up measures were not coming up and he was aggrieved by the non-implementation of the Central Government decision regarding the cadre restructure of Library staff of the Central Government Departments. The posts of Library staff in the Central Administrative Tribunal were created without study of cadre management and as a consequence he was finding it difficult to develop his career and prospects.

During the pendency of the application, in reply to the letter seen to have been written by the Principal Registrar of the Central Administrative Tribunal, New Delhi, the Government of India, Ministry of Personnel, Public Grievances and Pensions on 18-05-2004 informed the Registrar that employees of CAT are not covered by the orders regarding the implementation of recommendation of the 5th Central Pay Commission in respect of Library Staff as per Office Memorandum dated 21-02-2002. The applicant filed that it was not a positive approach. Thereupon, the applicant had amended the Original Application and included a prayer to quash the above said order as well. The request made in effect therefore was to make available the benefits of the revised pay scales effective from 01-01-1996 as might have come about in terms of Annexure-A3 Office Memorandum dated 21-02-2002.

The Tribunal had, as referred to earlier, granted the reliefs substantially, although it had been ordered that he would not be entitled to claim retrospective upgradation of the entry post. As a consequence, he was to be granted the pay scale of Rs. 5500-9000 with effect from 01-01-1996 and resultantly was to become eligible for promotion as Assistant Library and Information Officer on completion of three years in the above said scale. This order is now under challenge.

We had heard Sri. John Varghese, Assistant Solicitor General of India on behalf of the petitioners and Sri. T.C. Govindaswamy on behalf of the respondent.

On behalf of the Government of India, it is submitted that the order passed by the Tribunal is misconceived beyond its powers, and in any case, unsustainable. It is argued that even if there was any inherent justifiability in the claim, this was not one which could be resolved on the judicial side, as the matter involved a policy to be implemented in general terms. Office Memorandum of 21-02-2002 had been issued restricting its operation in favour of Librarians working in the Departmental Libraries. This itself had been brought about after due deliberations and for sound reasons. If the Tribunal felt that there was any discriminatory element in the order, especially when the Government had clarified by Annexure-A5, that the O.M. was not intended to cover the employees of the CAT, what was expected of the Tribunal was to issue orders directing the Government to take notice of the situation suggesting remedial measures to counter the mischief. By granting a declaration, practically the Tribunal had legislated on the field resorting to powers of the Central Government and the order required to be set aside. Counsel had adverted to judicial pronouncements touching on the subject, and submitted that the order, as is presently stood, is not sustainable.

On the other hand, Mr. Govindaswamy, appearing for the respondent, submits that evidently the Tribunal was aware of the entire situation and had examined the issues thoroughly and the directions had been issued being careful enough to see that unnecessary financial burden had not been cast on the Government, but simultaneously the recognisable rights of an employee were duly upheld. The directions could be understood only in the aforesaid manner and no interference therefore was warranted. It is further submitted that, as a group, qualified Librarians are very few in the Central Administrative Tribunals and the implementation of the directions would not have cast undue strain on the Government and this also is a circumstance for this Court to keep the order in tact, as the employee would have been subjected to great hardship and prejudice, if the matter was again left open indefinitely. We may examine the issue in the above said backgrounds.

The case presented before the Tribunal was a grievance pointing out that the representation pending for a long time was not being appropriately considered and the benefits that would have come to be granted on the recommendations of the 4th and 5th Central Pay Commissions were being unnecessarily kept back. The trend of the application itself showed that the attempt of the applicant was to get a declaration, and it was not one where there was a request made for enforcement of a claim which stood already been recognised. As Sri. John Varghese points out, the basic issue was as to whether the Library Staff of CAT were entitled to higher emoluments, as would have been payable to their counter parts of the Departmental Libraries. This according to him was a policy decision. Sri. Govindaswamy submits that in view of Section 13 of the Administrative Tribunals Act, which provides that the appropriate Government is to determine the nature and categories of the officers and other employees required to assist a Tribunal, in the discharge of its functions and the salaries and allowances and conditions of service of the officers and employees of a Tribunal shall be such as may be specified by the Rules. Rule 4 of the Central Administrative Tribunal (Staff) (Conditions of the Service) Rules 1985, according to him, laid down that the conditions of service including matters of pay and allowances are to be regulated from time to time as applicable to the officers and employees belonging to Group ''A'', Group ''B'' Group ''C'' and Group ''D'' of the Central Government of the corresponding scales of pay stationed at these places automatically. When the reports of Pay Commissions are accepted and pay scales recommended, the staff of CAT, as of right, becomes entitled to such rights. Therefore, the technical objection raised by the Government could not have been available to them. When the Tribunal had found that there was hostile discrimination and the applicant was highly qualified and came within the parameters of the orders, there was no necessity for remitting the matter for any fresh consideration.

Mr. John Varghese refers to the judgment of the Supreme Court reported in State of Punjab and Others Vs. Amar Nath Goyal and Others, , and especially paragraph 28 of the judgment. It was a case where the Court examined the issue as to whether the final recommendations of the Pay Commission were binding on the Government. Counsel invites our attention to the observations made by the Supreme Court viz., that when "the Central Government took a conscious stand that the consequential financial burden would be unbreakable....it is trite that the financial recommendations of the Pay Commission were not ipso facto binding on the Government, as the Government had to accept and implement the recommendations of the Pay Commission consistent with its financial position". Mr. John Varghese submits that this observation is pointer to the jurisdictional power of the Government to exercise its discretion, in respect of recommendations. He points out that the Pay Commission itself refrained from giving recommendations, so as to cover the Libraries in a wholesale manner, and left the decision to be taken by the Government, as the issue was complex and required further minute attention.

He had also adverted to the case reported as Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, . Mr. Justice Ahmadi, as he then was, had in precise language discussed the principles, especially in paragraph 12 of the judgment. Equation of posts and determination of pay scales, the Court observed, were primarily the function of the executive and not of the judiciary. Ordinarily courts will not enter upon the task of job evaluation. "There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court''s interference is absolutely necessary to undo the injustice". The principles almost akin to the above laid down by the Supreme Court in State of Haryana and another v. Haryana Civil Secretariat Personal Staff Association 2002 (2) SCC 72) as well as State of U.P. and Another Vs. Johri Mal, also had been relied on.

Controverting the contentions, relying on the observations made by the Supreme Court in Randhir Singh Vs. Union of India (UOI) and Others, as also Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, . Sri. Govindaswamy submits that the principle as above has to be understood with reference to these judgments. He submits that Annexure-A5 is bald in every respect and it is a recognised principle that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. However, the counsel submits that the principle cannot be absolute and rigid, and at least in certain circumstances attendant facts would have to be noted. With respect to Randhir Singh''s case, it is pointed out that Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws. Equality clauses of the Constitution must mean something to everyone. Such clauses can have substance only if equal work is remunerated equally. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern and the equality clauses can have significance only in this background. Counsel contends that the default or lethargy of an administrative body should not have therefore interfered with the right of equality, as the delay of over a decade had been cutting deep wounds on the applicant.

We cannot but observe that the Tribunal has been too liberal in accepting the case of the applicant, and the criticism that they had exceeded their powers, while passing Ext. P3 order, cannot go unnoticed. Ideas of equality and equal pay are abstract principles and have to be tested with the facts and circumstances of identical cases and situation. The applicant had approached the Tribunal initially with a request, whereby a grievance was placed that the Chairman of the Central Administrative Tribunal was keeping silence over a representation, submitted by him on 10-10-2003. The request was to intervent in the matter for implementation of orders of the Government of India dated 24-07-1990 and 21-02-2002 regarding restructuring of posts and pay scales of Library Staff of the Central Administrative Tribunals. A further cause of action had arisen by the issue of Annexure-A5. But the question is as to whether it was one for implementing a crystallised right, or one to be carved out from the mass of materials available, which was to be entrusted to the experts in the field. We can see from the pleadings that the 4th Central Pay Commission itself had observed in paragraph 11.63 of its report as following:

"11.63. There are difficulties in reclassifying the posts of librarians and specifying their qualifications and recruitment levels. The pay scales, qualifications and level of qualifications and level of responsibility will really depend on several factors, mainly on the size of the library, its character and importance. To draw up suitable proposals in this regard a committee may be constituted to undertake this work. Pending such a review by the Committee, we recommend that librarians and library staff may be given the revised scales of pay proposed in chapter 8."

Therefore, there was no final determination or recommendation. A review committee had come to be appointed and its recommendations were accepted by the Government. The orders passed on such representations by the Review Committee is Annexure-A1. The Government had thereupon decided to evolve a pay structure for Library Staff, prescribing for ten designations and twelve scales of pay. In the matter of placement of existing Library Staff, what had been provided was that employees in the scales of pay in the table given were to be placed in the revised scales shown against them, provided the incumbent fulfilled the recruitment qualifications.

There was specific direction that each Administrative Ministry is to initiate action to categorise the Libraries under their control, based oh the parameters indicated in the Office Memorandum. Only after this categorisation, scales of pay and designations were to be introduced. We notice that it was also prescribed that in case the existing incumbent is in a lower scale of pay than the scale determined on the basis of categorisation, he may be considered for appointment in the higher scale provided he fulfils the recruitment qualifications.

Annexure-A1 prescribed the formula for categorization of Libraries. Government Libraries were to be grouped into six categories and recategorisation were to be undertaken after every five years from the date of initial fixation of category. Annexure-A2 refers to the implementation of the review committee report. The Review Committee had done considerable work and had prescribed that each category of Library should have professionals posted in designated scales. Particular reference was made to the National Library, Calcutta, Central Reference Library, School Librarians and other Departmental Libraries. It is meaningful to note that there was no categorisation as far as CAT Librarians are concerned. Consequent to the categorization, by Annexure-A3 dated 21-02-2002, pay scale of Departmental Librarians were revised effective from 01-01-1996. The entry pay scale of Departmental Librarians possessing minimum qualifications were to be Rs. 5500-9000 by merging the existing posts.

However, it so happened that as the issue relating to Librarians attached to CAT was not dealt with, the benefit of such orders could not have automatically made applicable to staff working there. Initially declared in the year 2002, this had been reiterated by order dated 18-05-2004.

The case of the applicant is built upon the circumstances that there was lethargy on the part of the concerned authorities to place the issue of CAT staff before the Review Committee. We are not told about the reason as to why the staff are even now kept away from comparison. But, per se while Annexure-A3 proceedings were drawn up, there was nothing to show that the recommendations covered the CAT staff. It would have been possible for the Tribunal to grant the reliefs only in case there were specific orders passed by the Central Government, at least in one way or the other. The argument of Sri. Govindaswamy that the staff are entitled to be recognised as Central Government employees is beside the point. We cannot but see that difficulty arises because the Pay Commission had not made any specific recommendations in respect of any group attached to any Libraries. The matter was left to be decided by a Review Committee and the Review Committee had no occasion to consider the case pertaining to the staff of central Administrative Tribunal. Discrimination perhaps can be visualised to the extent that they had been left out from being considered, on the merits of their claims, or for conferment of benefits. But the principle of "equal pay" may not at all arise. As pointed out by the Additional Solicitor General, the proper course would have been for the Tribunal to direct the Central Government to consider the claims of a group, which is to be considered as left out and compel the Government to take a decision in respect of this category, even if the opinion of the Tribunal was that stepmotherly treatment is meted out.

The argument as above appears to be sound and sustainable. We can also see that the real aspects had not been placed before the Tribunal, as the Registrar of the Tribunal had been authorised to swear to the counter affidavit on behalf of all the respondents. Situated as he is, the Registrar was not in the know of things. But the lapse as above should not be a reason by itself for a drastic decision. The directions issued by the Tribunal quashing Ext. P5 do not appear to be based on any reason, and it should not have been possible for the CAT to direct inclusion of persons, like the applicant, as coming within the purview of Annexure-A3 for grant of reliefs. The observation made in Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, is fully relevant here. Consequently, Ext. P3 will stand set aside.

Additional Solicitor General submits that it is not as if the Government is unconcerned about the grievances that had been raised by the applicant, and as could be gatherable from his representation dated 10-10-2003. It is submitted that if the matter is appropriately taken up by him before the Central Government, without discriminating him, and recognising the claims to the extent tenable, appropriate follow up orders should be passed. May be there are only a very few persons attached to the Libraries of the CATs and even among them there may be very few qualified hands. From the pleadings, it is clear that the respondent is industrious and has acquired qualifications in excess of the normal requirements compared with the post he holds. His claims are to be treated with an amount of compassion, and recognising his merit. If a representation is filed by the respondent as above before the first petitioner-Secretary to Government, Government of India, we direct that they should consider the same and take an expeditious decision on the representation. In any case, the decision has to be communicated, preferably after hearing him, within a period of three months from the date of receipt of such representation, and if feasible, on the basis of the expertise the Government has already gathered from the report of the Review Committee.

The writ petition will stand allowed.