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Judgment
L. Mohapatra, J.—All the six writ applications have been filed against the order of the Central Administrative Tribunal, Cuttack Bench,
Cuttack dated 11th April, 2005 passed in batch of Original Application bearing Nos. 275, 276 and 375 to 392 of 2004.
Case of the applicants before the Tribunal was that they were working under Malaria Research Centre (in short, ''M.R.C.'') which is a unit
under Indian Council of Medical Research (in short, ''I.C.M.R.''). A decision was taken to extend 40% fitment benefit to the employees of MRC
on implementation of revised scale of pay in pursuance of the recommendation of the Fifth Central Pay Commission. In terms of the said decision,
the pay of the applicants had been fixed. The applicants through the Registered Trade Union approached the authority by way of representation
dated 15.9.2003 for payment of arrear pay on the ground of fixation of pay in terms of the aforesaid decision. It was the case of the applicants that
the temporary employees were being paid at par with their counter parts in the regular establishment and this practice is being followed for 15 to
20 years. An instruction was issued to the Drawing and Disbursing Officer not to prepare the salary for the month of May, 2004 extending 40%
fitment benefit simultaneously directing recovery of the amount already paid in pursuance of the decision towards 40% fitment benefit in suitable
instalments. Such instruction withdrawing 40% fitment benefit and directing recovery of the amount already paid in instalments was challenged
before the Tribunal.
The employer filed a counter affidavit before the Tribunal stating therein that the applicants have been engaged in a long term Integrated Disease
Vector Control (in short, ''IDVC'') Project as Insect Collectors in MRC, Rourkela. In terms of their appointment, they were engaged in the
Project and their tenure of service is co-terminus with the duration of the Project. Working in the project, they cannot equate themselves with
employees working in the regular establishment of ICMR and accordingly they are not entitled to the benefits due as admissible to the regular
employees. Though a decision had been taken to give them benefit of 40% fitment and the said decision was implemented, later on it was found
that the additional financial burden could not be undertaken by the Government and accordingly, such benefit has been withdrawn with a further
direction to recover the amount already paid towards 40% fitment benefit in suitable instalments. According to the employer, the applicants being
the employees in the Project cannot be equated with the employees working in the regular establishment (ICMR) and, therefore, even though the
benefit had been extended to them for a certain period, the same can be withdrawn depending on the financial position of the Government.
The Tribunal in paragraph-6 of the impugned order observed that it is not for the Court to delve into the administrative decision and find out an
answer. As the matter has been considered in consultation with the Ministry of Health and Family Welfare as well as Department of Expenditure,
Ministry of Finance and it was found not feasible to offer 40% fitment benefit to the category of staff like the applicants, it is not a matter for
judicial scrutiny. Apart from the above, the project staff and regular employees are separate and distinct and the Project staff stands on separate
footing than the regular employees and, therefore, there is no question of discrimination or violation of the provisions of Article 14 of the
Constitution of India. Accordingly, the prayer of the applicants for setting aside the instruction for withdrawal of 40% fitment benefit was not
interfered with. However, the Tribunal directed that the amount already paid shall not be recovered.
Challenging first part of the Tribunal order rejecting the prayer of the applicants for setting aside the order withdrawing 40% fitment benefit W.P.
(C) Nos. 8055, 8056 and 6986 of 2005 have been filed by the applicants whereas the employer i.e. the Director, Malaria Research Centre has
filed W.P.(C) Nos. 14415, 14416 and 14417 of 2005 challenging second part of the order of the Tribunal directing not to recover the amount
already paid.
Shri G.A.R. Dora, the learned senior counsel appearing for the applicants drew attention of the Court to an additional affidavit filed in W.P.(C)
No. 8056 of 2005 in Court on the date of hearing. Reliance has been placed in the said affidavit on a decision of the Madhya Pradesh High Court
(Jabalpur Bench) rendered in W.P. No. 4948 of 2005 (s) disposed of on 08.9.2005. In the aforesaid writ application filed before the Jabalpur
Bench of the Madhya Pradesh High Court the petitioners therein had challenged the order dated 26.4.2005 passed by the Central Administrative
Tribunal, Jabalpur Bench in O.A. No. 520 of 2004. The petitioners in the said case had approached the Tribunal praying for quashment of the
order dated 17.5.2004 passed by I.C.M.R. whereby benefit of 40% fitment granted to them had been withdrawn. The High Court of Madhya
Pradesh found that before withdrawal of such benefit no notice had been served on the petitioners therein and, therefore, quashed the order
withdrawing such benefit and disposed of the writ application with the following directions:
(i) No recovery shall be made against the petitioners.
(ii) The petitioners shall be given an opportunity of hearing with regard to the alleged withdrawal of the benefit of 40% fitment by the respondents.
The respondents after affording an opportunity of being heard to the petitioners, shall pass a reasoned order within a period of three months from
the date of receipt of the order passed today.
(iii) On an adverse order being passed against the petitioners, they would be at liberty to agitate the matter further, before an appropriate forum.
(iv) Till the decision on the objection, the petitioners would not be entitled to receive the benefit of 40% fitment.
(v) The petitioners, if so desire, shall send their authorized representative for putting forth their stand.
Shri Sangram Das, the learned Counsel appearing for the opposite parties and also in the aforesaid connected writ applications filed by the
employer drew attention of the Court to a decision of the Madras High Court in batch writ petition bearing Nos. 27550, 27552, 27554, 27556
and 27563 of 2005 disposed of on 16.2.2003. This batch of writ applications were filed in the Madras High Court against the order of the Central
Administrative Tribunal dated 27.7.2005 dismissing the Original Applications in relation to withdrawal of 40% fitment benefit and consequent
recovery of the amount already paid. The petitioners in those writ applications had been employed by ICMR as Project staff and their services had
not been regularized. In terms of the Fifty Pay Commission recommendation, the Board of Governors of ICMR by order dated 02.7.1999
directed that the pay of the staff of project to be computed in terms of the recommendation of the Fifth Pay Commission and the effective date was
mentioned as 01.4.1998 in stead of 01.1.1996 as per Commission''s recommendation. It was also decided that the pay of the ad hoc staff would
be computed without allowing the benefit of additional 40% of the basic pay in the existing scale. If the said benefit of 40% of the basic pay in the
existing scale of pay was allowed, it would have resulted in one additional increment for every three years of service and there would have been a
difference in pay to persons, who are in long service as well as new entrants. After the pay fixation was done, it was found that it resulted in glaring
anomalies and ICMR by order dated 09.7.2001 directed that pay of the staff appointed in running scales of pay working in various long term extra
mural research projects will be revised with effect from 01.04.1998 by adding the fitment benefit of 40% of basic pay in the pre-revised scales of
pay. This was given effect to the petitioners therein and they were paid arrears of pay upon such fitment done.
On the basis of a clarification sought for by ICMR, the Government of India in the Department of Ministry of Health and Family Welfare by letter
dated 05.5.2004 informed that the project staff of ICMR are not covered by the order of the Department of Expenditure and they were not
eligible for 40% fitment benefit. The Ministry of Finance also directed ICMR to rescind the said order. In the light of the above, ICMR by order
dated 13.5.2004 rescinded the fitment formula and also directed for recovery of the arrears paid. Against the said order, the petitioners before the
Madras High Court had approached the Tribunal in various Original Applications. After hearing the parties and with reference to the judgment of
the Hon''ble Supreme Court in the case of S.C. Chandra and Others Vs. State of Jharkhand and Others, it was held that grant of pay scales is an
executive or legislative function not a judicial function. The aforesaid judgment was also followed by the Hon''ble Supreme Court in a later decision
and the Madras High Court in view of the decision cited above came to a conclusion that fixation of pay scale pursuant to the recommendation of
the Commission are being done through a policy decision of the Government and that in the name of equal pay for equal work, the same cannot be
directed to be implemented by orders of the Court. The Court also found that the petitioners in the writ applications could not make out any case
for retaining the fitment formula and the consequential upward revision of pay scale and accordingly dismissed all the writ applications, but did not
interfere with the order of the Tribunal directing not to recover the amount already paid.
Though these two decisions are relied upon by the learned Counsel for the parties in support of their respective plea and it was submitted by
Shri Dora, the learned senior counsel appearing for the applicants that in the meantime much development had taken place and if the matter is
remitted back to the authorities for reconsideration, it will be possible on the part of the applicants to prove their stand, Shri Das, the learned
Counsel appearing for the employer submitted that so long as the Ministry of finance and the Ministry of Health and Welfare, Government of India
do not lay down a policy for extension of these benefits to the project workers, neither ICMR nor the Director, Malaria Research Centre shall be
in a position to accede to the claim of the petitioners in W.P.C. Nos. 8056, 8055 and 6986 of 2005.
No doubt, fixation of pay is a matter to be decided by executive or legislature and the Court cannot direct for payment of equal pay for equal
work so long as it is not satisfied that the work executed by the employees of the Project are wholesome and similar as that of their counter parts
working in the regular establishment. There is no material before us to come to a conclusion as to whether the applicants discharge the same work
as that of their counter parts in the regular establishment. The decision of ICMR to extend 40% fitment benefit to the Project workers was not
approved by the Government of India in the appropriate department and as stated earlier, the said benefit has been withdrawn. Extension of such
benefit or withdrawal of the same is a policy decision of the Government and it is not open for judicial review. We, therefore, find much substance
in the submission of the learned Counsel for the employer that in these matters the Courts have no role to play and it is the executive or the
legislature to decide as a matter of policy as to whether the project workers would be extended 40% fitment benefits or not. No fruitful purpose
will also be served by setting aside the decision for withdrawal of the amount solely on the ground of non-service of notice as ICMR on its own
may not be in a position to allow the claim of the applicants without concurrence of the concerned Department of the Government of India. We are
therefore of the view that the Tribunal was justified in holding that the policy decision taken by the employer for withdrawal of 40% fitment benefit
is not open for judicial review. However, the decision for recovery of the amount already paid has been rightly quashed by the Tribunal as has
been done by the Madras High Court in the judgment referred to earlier.
We, therefore, do not find any reason to interfere with the impugned judgment. However before parting with the cases, we may observe that in
the changed circumstances the applicants may raise such claim before the appropriate Department of Government of India through their employer
and in such event, a policy decision shall be taken thereon by the authority concerned.
With the above observation, all the six writ applications are dismissed.
S. Panda, J.
I agree.