Dinesh Kumar Das vs Union Of India

Ramesh Sinha, J

Heard Mr. Sudeep Johri, learned counsel for the appellants. Also heard Mr. Ramakant Mishra, learned Deputy Solicitor General, appearing for the respondents.

The present intra Court appeal has been iled by the appellants/writ petitioners against the order dated 11.03.2019 passed by the learned Single Judge in WPS No. 1603 of 2019 (Dinesh Kumar Das & Others vs. Union of India & Others), whereby the learned Single Judge has disposed of the writ petition iled by the appellants/writ petitioners.

Learned counsel for the appellants submits that the appellants No. 1 to 4 are working on the post of Chemical and Metallurgical Superintendent and the appellants No. 5 & 6 are working on the post of Chemical and Metallurgical Assistant having requisite qualiication of Degree in Engineering in Metallurgy / Chemical or M.Sc. (Chemistry). He also submits that the appellants as well as Senior Section Engineers (Railways) are being recruited from the same Railway Recruitment Board (for short, ‘RRB’) having requisite qualiication of degree in engineering (Mechanical, Electrical, Civil, Signal and Telecom) and simultaneously Chief Depot Material Superintendent (for short, ‘CDMS’) having qualiication Degree in Engineering in any discipline.

It is further submitted by the learned counsel for the appellants that the appellants have been recruited in the year 2006 during the pendency of the 5th Central Pay Commission (CPC) recommendations and same were adopted by the respondents to the extent of deining the Subordinate Engineering cadre and thereafter, accepted in paragraph Nos. 3.4.7 & 3.5.7 of the 6th CPC report. He also submits that the appellants after the recruitment from the Railway Recruitment Board on the post of Chemical and Metallurgical Assistant-I were getting pay scale of Rs. 5500-9000 p.m. despite the general and uniform recommendation of the 5th CPC for the subordinate Engineering cadre with qualiication of Degree in Engineering or Post Graduation to have uniform pay scale of 6500-10500/-. Despite CMA-I being in the same Subordinate Engineering cadre, only Senior Section Engineers and also the CDMS were given pay scale of 6500-10500/- p.m. Since the aforementioned recommendation was accepted by the respondents vide letter dated 26.12.2008 in the reply of a RTI application of the appellant No. 1 and stated that the 6th pay commission has made speciic recommendation on the pay structure of CMA-I in paragraph 7.36.91 of their reports and same has been accepted and implemented and simultaneously admitted that the pay commission is a expert body which generally after considering all aspect having a bearing on the pay scale including recruitment qualiication etc. which is beyond the competent of the Ministry to enquire into the reasons for recommending / allotting a particular pay scale to a particular category.

Learned counsel for the appellants states that after being accepting the recommendation in its totality by the respondents No.1 & 4 and the same was published vide notiication No. RBE-103/2008 dated 04.09.2008. but, the respondents No. 1 & 4 did not implement the same, hence, other oicers in a subordinate engineering cadre had challenged the non implementation of the 6th pay commission by iling an Original Application before the Central Administrative Tribunal, Calcutta bearing Ο.Α. Νο.1957 of 2010. He also states that the aforementioned OA was allowed by the CAT Calcutta Bench on 08.07.2014 and directed the respondentd No.1 & 4 to decide the matter in the terms of paragraph 3.4.7 of 6th CPC within a period of two months or else refer the matters to the anomalies committee if any in the Railways arising out of 6th CPC or refer the matter appropriately to the 7th CPC.

It is further contended by the learned counsel for the appellants that appellant No. 2 has iled an application under RTI on 06.04.2018 and thereafter, received the reply that inter Ministerial Consultation are still under way and the recommendation that inally eminent as a result of such consultation and relevant paper there under will be needed to be put up to the cabinet for approval vide reply dated 11.04.2018. He also contended that the recommendation pertains to the appellants have been rejected by the inter Ministerial Committee only for the cadre of the appellants and hence, a petition was iled by the appellants for illegal action of the respondent No. 1 before the learned Single Judge and same was dismissed at the motion hearing stage by the impugned order dated 11.03.2019.

Learned counsel for the appellants submits that the learned Single Judge did not appreciate this very fact that the Central Administrative Tribunal does not have any power to issue a writ of mandamus and to command the respondents to implement the recommendation for the cadre of the appellants, and therefore, the impugned order is illegal and liable to be set aside. He also submits that the learned Single Judge has erred in not appreciating this very facts that until and unless the recommendation of the pay commission is admitted and approved by the cabinet, it does not become the service condition to be implemented, and therefore, in absence of the such requisite factor the impugned order is sufers from patent illegality, thus, liable to be set aside.

Learned counsel for the appellants further submits that the learned Single Judge has failed to appreciate this very facts that the recommendation of any pay commission is not having any statutory force, though advisory in nature and it could only be consider as service condition when the recommendation was approved by the cabinet and notiication thereof being issued by the respondent No. 1 in this regard. Ever since the 7th pay commission was constituted for the revised pay structure of the employees of the respondent No. 1 and other Central Government Employees and hence, no discrimination would have been allowed in the settled principle of Hon’ble Supreme Court in the matter of Purshottam Lal & Others vs. Union of India & Others, reported in (1973) 1 SCC 651. The Hon’ble Supreme Court has held in paragraphs 15 & 17 as under:

“15. Mr. Dhebar contends that it was for the government to accept the recommendation of the pay commission and while doing so to determine which categories of employees should be taken to have been included in terms of reference. We are unable to appreciate this point, either the government has made reference in respect of all government employees or it has not. But if, it has made a reference in respect of all government employees and it accepts the recommendation it is bound to implement the recommendations in respect of all government employees. If it does not implement the report regarding some employee only it commits a breach of Article 14 & 16 of the Constitution of India. This is what the government has done as par as these petitioners are concerned.

In the result the petition is allowed and it is directed that revised pay scale of the petitioner will have efect from July 1st, 1959 in accordance with the recommendation of the pay commission. We further directed that the petitioner should be paid the amount payable to them as a consequence of the revision of pay scale w.e.f July, 1959. The petitioner will have the costs of this petition.”

But, the learned Single Judge has failed to appreciate that the recommendation cannot be terms as service condition until accepted by the respondents, and therefore, the impugned order sufers from patent illegality as the aforesaid decision of the Hon’ble Supreme Court is squarely applicable in the case of the appellants and binding on the learned Single Judge under Article 141 of the Constitution of India. Hence, the aforesaid impugned order dated 11.03.2019 is untenable in the eyes of law.

On the other hand, learned Deputy Solicitor General, appearing for the respondents submits that the learned Single Judge after considering all the aspects of the matter has rightly disposed of the writ petition iled by the appellants/writ petitioners, in which no interference is called for.

It is further submitted by the learned Deputy Solicitor General that the grievance of the appellants can be redressed under the Administrative Tribunals Act, 1985 (for short, ‘Act of 1985’). Section 14 of the Act of 1985 reads as under:

“14. Jurisdiction, powers and authority of the Central Administrative Tribunal.

—(1) Save as otherwise expressly provided in this Act, the Central Administrative Tribunal shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court (the words “under article 136 of the Constitution” omitted by Act 19 of 1986, Section 11 (w.r.e.f 22.01.1986)) in relation to—

(a) recruitment, and matters concerning recruitment, to any All-India Service or to any civil service of the Union or a civil post under the Union or to a post connected with defence or in the defence services, being, in either case, a post illed by a civilian;

(b) all service matters concerning—

(i) a member of any All-India Service; or

(ii) a person [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any civil service of the Union or any civil post under the Union; or

(iii) a civilian [not being a member of an All-India Service or a person referred to in clause (c)] appointed to any defence services or a post connected with defence, and pertaining to the service of such member, person or civilian, in connection with the afairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation [or society] owned or controlled by the Government;

(c) all service matters pertaining to service in connection with the afairs of the Union concerning a person appointed to any service or post referred to in sub-clause (ii) or sub-clause (iii) of clause (b), being a person whose services have been placed by a State Government or any local or other authority or any corporation [or society] or other body, at the disposal of the Central Government for such appointment.

xxx      xxx  xxx”

We have heard learned counsel for the appellant/respondent and perused the impugned judgment and materials available on record.

The terms “all service matters” referred to under Section 14 of the Act of 1985 has to be given a wider interpretation and it would also deinitely bring in the dispute in respect of the claim of parity of pay-scale, even if that be one which has arisen on the refusal to be granted inspite of the recommendation of the pay commission constituted by the Government of India.

Since there is a recommendation in favour of the appellants by the Pay Commission and the same was denied by the Inter Ministerial Committee, then it all the more becomes a direct dispute of the appellants being denied certain recommendations which have been made by the 7th pay commission and which is being denied by the employer i.e. the respondents in the present case and the same, therefore, would come under “all service matters” as envisaged under Section 14 of the Act of 1985.

Considering the pleadings made in the writ appeal, submissions advanced by the learned counsel appearing for the appellant and also considering the indings recorded by the learned Single Judge while disposing the writ petition iled by the appellants/writ petitioners, we are of the considered opinion that the learned Single Judge has not committed any illegality, irregularity or jurisdictional error warranting interference by this Court.

Accordingly, the present writ appeal being devoid of merit is liable to be and is hereby dismissed. However, the appellants are at liberty to avail the appropriate remedy under the provisions of Act of 1985.