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Judgment
Hon’ble Mr. Rajveer Singh Verma, Member (J) :
The applicants, comprising the Subordinates Accounts Services Welfare Association and serving Assistant Accounts Officers of the Government of National Capital Territory of Delhi, have instituted this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking the following relief(s) :-
(i)To quash and set aside the impugned letters/ communications dated 30.05.2022 and 15.09.2023 of MHA and dated 07.10.2022 of Finance Department, Government of NCT of Delhi and direct the respondents to grant NFU to the in the Grade Pay of Rs. 5400 from 01.01.2016 with all arrears of pay and allowances including interest @9°/o per annum-
(ii)To direct the respondents to grant NFU in the Grade Pay of 5400 (PB-2) Level-09 of Pay Matrix as per OM dated 18.06.2018 issued by Ministry of Finance, Department of Expenditure, Government of India to the applicants/ Assistant Accounts Officers of organized Accounts Cadre of Govt. of NCT of Delhi on completion of 04 years of regular service in the grade pay of 4800 with effect from 01.01.2016 with all consequential benefits including arrears of pay and allowances including interest @9% per annum.
(iii)To declare the action of respondents in not granting the Grade Pay of Rs. 5400 /Level 9 on completion of 4 years of regular service to the applicants i.e. Assistant Accounts Officer as granted to the counterparts of applicants i.e. Assistant Accounts Officers of Organised Accounts Cadre of Central Government vide OM dated 04.07.2018 as illegal and direct the respondents (GNCTD) to grant Grade Pay of 5400 (PB-2) Level-09 of Pay Matrix as per OM dated 18.06.2018 issued by Ministry of Finance, Department of Expenditure to the applicants on completion of 04 years of service in the grade pay of 4800 with effect from 01.01.2016 with all consequenti al benefits including arrears of pay a·nd allowances and interest @9°/o per annu m in consonance with OM dated 4.07.201 8 issued by the CGA. (iv) to allow the OA with cost. (v) Pass any further orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case
Learned counsel for the applicant submitted that the organized Accounts Cadre of GNCTD has historical parity with respect to pay scale, mode or recruitment and duties and responsibilities with the Organized Accounts Cadre of Central Government. Restructuring of the cadre was extended via Ministry of Home Affairs letter dated 20.02.1989 following Ministry of Finance Office Memorandum dated 12.06.1987. Promotional grades and pay scale revisions under subsequent CPCs were uniformly extended to the Organized Accounts Cadre of GNCTD at par with Central Government, as reflected in communications dated 31.12.1993, 09.08.2004. On 08.10.2009, the Government of National Capital Territory of Delhi merged the posts of Junior Accounts Officer and Assistant Accounts Officer into the single post of Assistant Accounts Officer in Pay Band 2 with Grade Pay of 4800.
The main grievance of the applicants is the discrimination meted out to them by the respondents in not granting them Grade Pay of Rs.5400/- in Level 9 w.e.f. 01.01.2016 on completion of four years in Grade Pay of Rs.4800 at par with their counterparts serving as Assistant Accounts Officer of organized accounts cadre of Central Government.
4 Learned counsel for the applicant submitted that following the recommendations of the 7th CPC under para 11.12.140, the Department of Expenditure issued Office Memorandum dated 18.06.2018 granting Non-Functional Upgradation to Assistant Accounts Officers of Indian Audit and Accounts Department, Indian Civil Accounts Organization and P&T Accounts in Level 9 upon completion of 4 years in Level 8. The Controller General of Accounts implemented this vide Office Memorandum dated 04.07.2018 with effect from 01.01.2016, which covers Central Accounts Services. The applicant association submitted representations starting on 04.01.2019 followed by reminders dated 14.06.2019, 22.11.2019 and 22.06.2020, seeking identical extension. The Finance Department, Government of NCT of Delhi, repeatedly recommended the grant of Non-Functional Upgradation with the approval of the Lieutenant Governor of Delhi via communications dated 10.08.2020, 08.10.2020, 20.04.2022, 13.12.2022, 03.07.2023, and 04.01.2024, confirming that the financial implication would be borne entirely by the local administration. Despite paragraph 7.57.23 of the 6th Central Pay Commission explicitly mandating that recommendations for the Central Organized Accounts Cadre shall apply to the Delhi Accounts Cadre, the Ministry of Finance and Ministry of Home Affairs rejected the proposal on the ground of an absence of specific 7th CPC recommendations for the local cadre. The applicants contended that such denial violates Articles 14 and 16 of the Constitution of India and contradicts the settled law laid down by the Supreme Court of India in State of Maharashtra v. Tukaram Trymbak Chaudhari & Ors. 2007 (9) SCC 201.
The respondents, on the other hand, contended that the grant of NFU applied exclusively to specified Central Government organized cadres. It is further submitted that the Ministry of Home Affairs examined the proposals submitted by the Government of National Capital Territory of Delhi in consultation with the Department of Expenditure. As communicated vide Ministry of Home Affairs letters dated 30.05.2022 and 15.09.2023, the Department of Expenditure declined the proposal on the ground that the 7th CPC made no specific recommendation for the grant of NFU to the Accounts Cadre of the Government of NCT of Delhi. Consequently, the Finance Department of the Government of NCT of Delhi issued communication dated 07.10.2022 conveying the rejection of the representation. The respondents maintained that pay scale revision and grant of non-functional scales are policy decisions dependent on specific commission recommendations and executive sanction, and parity cannot be claimed automatically without specific administrative authorization.
In response to the stand taken by the respondents, the applicants submitted that the rejection based on the absence of express mention in the 7th CPC report is wholly unsustainable. The 7th CPC did not make any specific recommendations with respect to grant of NFU either for Govt. of NCT of Delhi or Central Govt. Para 7.57.23 of the 6th CPC report laid down an overarching policy that the organized Accounts Cadre in Delhi is structured in consonance with the Central Government cadre, and all Central Government recommendations automatically apply to Delhi Government. The 7th CPC reaffirmed this underlying cadre alignment.
Furthermore, the Government of NCT of Delhi itself repeatedly confirmed historical parity across recruitment modes, duties, hierarchical structure, and pay scales through communications dated 09.09.2021, 16.12.2021, and 03.07.2023. The local administration explicitly assured the Ministry of Home Affairs on 08.10.2020 and 29.12.2020 that all financial burdens arising out of the Non-Functional Upgradation would be borne directly by the Government of NCT of Delhi, eliminating any financial impact on the Central exchequer. The arbitrary refusal by the Department of Expenditure ignores historical administrative precedent, past executive decisions from 20.02.1989 to 08.10.2009, and established judicial principles against discriminatory treatment among identically situated cadres, thereby entitling the applicants to the reliefs prayed for. It is submitted that the NFU was granted to the Central Govt. Organized Accounts Cadre in the year 2018 itself and the Govt. of NCT had already accepted the said factual position. It is evident from para 11.12.140 of the recommendations of the CPC as made basis to issue OM dated 04.07.2018 that the Grade Pay of Rs.5400 has been made available to all officers in Organized Accounts Cadres in Indian Audit & Accounts Department, Defence Accounts Department, Indian Civil Accounts Organisation, Railways, Post and Telecommunications.
We have heard learned counsel for the parties and perused the pleadings and the material on record.
The question that arises is whether the refusal of the respondents to extend Non-Functional Upgradation to Grade Pay Rs.5400 (PB-2), Level 9 of the Pay Matrix, to the Assistant Accounts Officers of the organised Accounts Cadre of the Government of NCT of Delhi, on the sole ground that the 7th CPC made no specific recommendation for that cadre, can be sustained.
At the outset, we remind ourselves of the limits of our jurisdiction in matters of pay. In Union of India v. Indian Navy Civilian Design Officers Association, 2023 SCC OnLine SC 173 (Civil Appeal No. 8329 of 2011, decided on 22.02.2023), the Hon'ble Supreme Court, after surveying the earlier decisions, held in para 14:
"14……The equation of posts and determination of pay scales is the primary function of the Executive and not of the Judiciary. The Courts therefore should not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions which undertake rigorous exercise for job evaluation after taking into consideration several factors like the nature of work, the duties, accountability and responsibilities attached to the posts, the extent of powers conferred on the persons holding a particular post, the promotional avenues, the Statutory rules governing the conditions of service, the horizontal and vertical relativities with similar jobs etc." and in para 17:
"17.The powers of judicial review in the matters involving financial implications are also very limited. The wisdom and advisability of the Courts in the matters concerning the finance, are ordinarily not amenable to judicial review unless a gross case of arbitrariness or unfairness is established by the aggrieved party."
The same principle is not, however, a licence for the employer to deny a benefit without considering the material that bears on it. In Union of India v. D.G.O.F. Employees Association, 2023 INSC 995 (Civil Appeal No. 1663 of 2016, decided on 09.11.2023), the Hon'ble Supreme Court, after noticing Indian Navy Civilian Design Officers Association (supra) and Union of India v. Dineshan K.K., (2008) 1 SCC 586, held in para 10:
"10.....though the Courts would not undertake the exercise of determining the pay scale keeping in view the nature of the work by comparing employees who are not similarly placed in cases where the exercise of determining such complex issues would arise, at the same time, relief cannot be denied to the employees when the entitlement is denied due to irrational consideration without application of mind to the facts involved in the case by the employer, thereby denying the benefits to the employees….." In para 12 of that judgment, the Hon'ble Supreme Court distinguished Union of India v. Manoj Kumar (Civil Appeal Nos. 913-914 of 2021, decided on 31.08.2021). It observed that in Manoj Kumar the Pay Commission had itself dealt specifically with the claim of parity between Secretariat and field offices, so its recommendation did not call for interference. In para 15, the Court upheld relief where the Hon’ble High Court, "keeping in view the recommendation of the Pay Commission and the applicability of the pay scales recommended to similarly placed employees employed in the headquarters and on noticing discrimination despite historical similarity has merely rectified the error". The distinction that emerges is this. Where the expert body has itself drawn a line between two cadres, the Tribunal will not erase it. Where the expert body has linked the cadres and the employer has not applied its mind to that linkage, the refusal is open to correction.
Against this background we turn to the recommendations of the Pay Commissions. Paragraph 7.57.23 of the Report of the 6th CPC (page 612) reads:
"7.57.23The organized Accounts cadre in Government of NCT of Delhi has demanded restructuring of their cadre. The Commission, as a matter of policy, is not considering restructuring of any individual cadres/services. Hence, no recommendation can be made in this regard. It is, however, observed that the accounts cadre in Delhi Government has been structured in consonance with the organized Accounts Cadre in Central Government. The recommendations made in respect of organized Accounts Cadre in the Central Government shall, therefore, apply in case of organized Accounts Cadre in Government of Delhi also." The 6th CPC thus recorded, as a fact, that the Delhi accounts cadre is structured in consonance with the organised Accounts Cadre of the Central Government. It directed that its recommendations for the Central organised Accounts Cadre would apply to the Delhi cadre as well. It is not in dispute that the respondents acted on this linkage in implementing the 6th CPC, including the merger of the posts of Junior Accounts Officer and Assistant Accounts Officer into a single post in PB-2 with Grade Pay Rs.4800 on 08.10.2009. That merger followed the earlier restructuring extended by the Ministry of Home Affairs on 20.02.1989 in terms of the Ministry of Finance O.M. dated 12.06.1987.
The 7th CPC, in para 11.12.140 of its Report (page 526), recommended as under:
"11.12.140The Commission is therefore of the view that there is no justification for excluding officers in the organised accounting departments who are at GP 4800 from this dispensation. It therefore recommends that all officers in organised accounts cadres (in the Indian Audit and Accounts Department, Defence Accounts Department, Indian Civil Accounts Organisation, Railways, Post and Telecommunications) who are in GP 4800 should be upgraded, on completion of four years' service to GP 5400 (PB-2), viz., Pay level 9, in the pay matrix."
In para 11.12.139, the Commission noted that the non-functional upgradation granted in 2008 already covered the Delhi and Andaman and Nicobar Islands Civil and Police Services. It also noted that, in the Departments of Posts and Revenue, it had been extended to officers in GP 4800 "both in Headquarters and in the field formations". The 7th CPC also examined the Delhi Administration Accounts Service separately. In para 11.23.163 it recorded the Service's demand for feeder posts and for restructuring along the lines of the CAG and CGA cadres. In para 11.23.164 (page 654) it observed:
"11.23.164Creation of feeder posts in the Accounts cadre and restructuring of subordinate accounts service of GNCT Delhi with other organised accounts cadre such as CAG, do not come under the purview of the Commission. As revealed from the report of the VI CPC vide para 7.57.23, the organised accounts cadre in the Government of NCT Delhi demanded restructuring of their cadre before the VI CPC also. However, as a matter of policy, the VI CPC did not consider the restructuring of individual cadre/services. The same stand has been taken by this Commission as well."
Further, in paras 7.7.3 and 7.7.5 (pages 224 to 225), the Commission explained what sets the organised accounts cadres apart. Para 7.7.3 identifies them "In the Central Government" as those of the Indian Audit and Accounts Department, the Controller General of Civil Accounts, the Department of Posts, Indian Railways and the Controller General of Defence Accounts. Para 7.7.5 gives the reason for treating them differently:
"The Commission notes that the mode of recruitment, entry level qualification and the duties and responsibilities of the organised accounts cadres are different when compared to those of unorganised accounts cadres. Similarly, the skill sets of the organised accounts cadres are also fairly higher. The organised accounts cadres have to compulsorily pass various examinations for promotions."
Three things emerge from this material:
The 7th CPC did not recommend that the Delhi accounts cadre be excluded from the non-functional upgradation. The only demand of that cadre before it was for restructuring, and the Commission declined that as a matter of policy.
In para 11.23.164, the 7th CPC referred to para 7.57.23 of the 6th CPC and adopted its stand on restructuring. It neither reiterated nor disowned the 6th CPC's direction that recommendations for the Central organised Accounts Cadre would apply to the Delhi cadre.
The reason the 7th CPC gave for the upgradation, that there was "no justification for excluding officers in the organised accounting departments who are at GP 4800", is framed in terms of the nature of the cadre and not of the department's name.
Whether, on these materials, the linkage in para 7.57.23 continues to govern the cadre in the 7th CPC regime is a question that must, in the first instance, be answered by the Government. We do not propose to answer it ourselves because, for that would take us into the very exercise that Indian Navy Civilian Design Officers Association (supra) cautions against.
We are unable to accept the contention of the applicants that the 7th CPC "reaffirmed" the cadre alignment. Nor are we able to accept the contention of the respondents that the absence of a specific recommendation for the Delhi cadre concludes the matter. Neither position is borne out by the text of the Report.
Learned counsel for the applicants relied on State of Maharashtra v. Tukaram Tryambak Chaudhari, (2007) 9 SCC 201. That decision turned on the construction of a Government Resolution dated 14.11.1979 and the qualifications of graduate teachers in primary schools. The Hon'ble Supreme Court upheld the view of the Hon’ble High Court, noting that:
"Conscious of such disparity in respect of teachers who are similarly situated but were treated differently on account of their being attached to primary schools and/or secondary schools, the State Government resolved to eliminate such differences and to make provisions for trained graduate teachers to be upgraded to a higher scale to the extent of 25% of the posts."
The decision does not lay down any general principle of pay parity. Its relevance here is limited to this: where the Government's own instrument is directed at removing disparity between similarly structured cadres, that instrument should be read and applied according to its purpose. Para 7.57.23 of the 6th CPC is such an instrument, and it must at least be considered.
Tested on these principles, the impugned communications cannot be sustained. As recorded in the communications of the Ministry of Home Affairs dated 30.05.2022 and 15.09.2023, and as reiterated in para 5 above, the Department of Expenditure declined the proposal only because the 7th CPC made no specific recommendation for the grant of NFU to the Accounts Cadre of the Government of NCT of Delhi. The communications do not refer to:
● para 7.57.23 of the 6th CPC Report;
● para 11.23.164 of the 7th CPC Report;
● the basis of the recommendation in para 11.12.140 read with para 7.7.5;
● the parity in structure, recruitment and pay maintained between the two cadres since 20.02.1989;
● the repeated recommendations of the Government of NCT of Delhi, made with the approval of the Lieutenant Governor on 10.08.2020, 08.10.2020, 20.04.2022, 13.12.2022, 03.07.2023 and 04.01.2024;
● the assurance of the Government of NCT of Delhi dated 08.10.2020 and 29.12.2020 that the financial implication would be borne entirely by it.
These were the very matters on which the claim of the applicants rested. A refusal that does not engage with them is, in the words of para 10 of D.G.O.F. Employees Association (supra), a denial "without application of mind to the facts involved in the case". The communication of the Finance Department, Government of NCT of Delhi, dated 07.10.2022, merely conveys that refusal and must fall with it. At the same time, the grant of the non-functional upgradation involves a policy decision with financial implications, which the Government must take in the first instance. We therefore do not consider it appropriate to direct the grant of the benefit ourselves.
In view of the above, the Original Application is partly allowed in the following terms:
The communications of the Ministry of Home Affairs dated 30.05.2022 and 15.09.2023, and the communication of the Finance Department, Government of NCT of Delhi dated 07.10.2022, are quashed and set aside.
Respondent No. 3 (Ministry of Home Affairs), in consultation with Respondent No. 4 (Department of Expenditure, Ministry of Finance), shall reconsider the proposal of the Government of NCT of Delhi for grant of Non-Functional Upgradation to Grade Pay Rs.5400 (PB-2), Level 9, to the Assistant Accounts Officers of its organised Accounts Cadre, on completion of four years of regular service in Grade Pay Rs.4800, in line with the Department of Expenditure O.M. dated 18.06.2018 and the O.M. of the Controller General of Accounts dated 04.07.2018. In doing so, the respondents shall specifically consider para 7.57.23 of the 6th CPC Report, paras 7.7.3, 7.7.5, 11.12.139, 11.12.140, 11.23.163 and 11.23.164 of the 7th CPC Report, the historical parity between the two cadres, the recommendations of the Government of NCT of Delhi referred to in para 15 above, and its undertaking to bear the financial implication.
The respondents shall pass a reasoned and speaking order within three months from the date of receipt of a certified copy of this order, and communicate it to the applicant Association.
If the applicants are found entitled, the consequential benefits, including arrears of pay and allowances, shall be released within eight weeks of that decision, and the same shall be subject to such limitation as may be determined in accordance with law.
If the applicants remain aggrieved by the decision so taken, they shall be at liberty to seek remedy in accordance with law.
Nothing in this order shall be construed as an expression of opinion on the merits of the claim, which shall be decided by the respondents independently on the material referred to above.
All pending MAs, if any, shall stand disposed of. There shall be no order as to costs.