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Judgment
K. Chandru, J.—W.P.6058 of 2005 is filed by the Union of India represented by Ministry of Communications and Information Technology
and two other officers of the Government against the order in O.A. No. 502 of 2003 dated 5.2.2004. By the aforesaid order, the Tribunal
directed the case of the contesting respondents 2 to 48 to be considered for the grant of higher scale of pay of Rs. 4000-6000 in the light of the
observations made by the Tribunal within a period of three months. The said writ petition was admitted by this Court on 23.2.2005. Pending the
writ petition, this Court granted an interim stay on 31.3.2005. Subsequently, 14 other persons moved the Central Administrative Tribunal with
O.A.271/2004 seeking for the scale of pay of Rs. 4000-6000. The Tribunal by a further order dated 9.9.2004 allowed the Original Application
on the basis of its earlier order in O.A.502 of 2003 which is challenged in W.P.6058/2005. This order was challenged by the Union of India in
W.P.15255 of 2005. The writ petition was admitted on 13.6.2005 and an interim stay was granted on the same day. It was also directed to be
posted along with the earlier writ petition i.e., W.P.6058 of 2005.
When the contesting respondents filed an application for vacating the interim order, this Court by an order dated 17.8.2005 after making the
interim order absolute gave the following directions:
(a)The benefits conferred under the impugned orders of the Tribunal dated 5.2.2004 and 9,9,2004 in O.A.Nos.502 of 2003 and O.A. No. 271 of
2004 respectively, shall be subject to the result in the respective writ petitions.
(b) Pending the writ petitions, the contesting respondents/the petitioners in the vacate stay petitions shall not claim any arrears based on the orders
of the Tribunal dated 5.2.2004 and 9.9.2004 in O.A.Nos.502 of 2003 and O.A. No. 271 of 2004 respectively.
(c) If ultimately the writ petitions are allowed, the writ petitioners are entitled to recover the excess amount, if any, paid to the contesting
respondents, from their monthly salary/retirement benefits.
In view of the inter connectivity of both the writ petitions, the matters were heard together and a common order is passed.
On behalf of the contesting respondents, a counter affidavit was also filed and the petitioners have also filed a rejoinder dated 2.12.2008.
The learned Additional Central Government Standing Counsel for the petitioners submitted that the contesting respondents were appointed as
Lower Division Clerks/Sorters /Group D employees. Consequent upon the introduction of computers in the Department of Posts, Postal
Accounts, Chennai, M.O. pairing work was computerized. In view of the same, the Sorters employed in M.O.Sorting became redundant. In order
to avoid retrenchment, such of those persons including the contesting respondents, a selection process was contemplated by the Directorate vide
its circular dated 4.9.1986. It was stated that after giving certain training, these persons was to be utilized in the Data Entry work on Ex-cadre
basis. It was also stated that as Lower Division Clerks and Group D employees, they were not eligible for being appointed to the posts of Data
Entry Operators as it was not in the normal channel of promotion. After their posting as Data Entry operators, their pay was fixed at Rs. 975-1660
as per the IV Pay Commission.
After the introduction of the V Pay Commission (with effect from 1.1.96) the said scale was revised into that of 3200-4900 with the fixation
benefit given to them in terms of FR 22 1 a (i). In the appointment order given to the contesting respondents, it was clearly stated that the post was
on Ex-cadre basis and the scale of pay was only 3200-4900. It was also stated that the said scale was undoubtedly higher than the scale of Lower
Division Clerks/Sorters which was only Rs. 3050-4590 and 2750-4400 respectively. When the contesting respondents have been specifically told
that the scale of pay will be only as given in the appointment order and their post was only on Ex-cadre basis, there was no question of their getting
an higher scale of pay as provided to the Data Entry Operators in the other departments of Union of India as recommended by the V Pay
Commission.
It was also argued that the V Pay Commission''s recommendations for the scale of pay for the post of Data Entry Operators grade namely
4000-6000 was subject to fulfillment of certain specific conditions which are relatable to minimum educational qualification, basic computer
knowledge and experience. When the contesting respondents were demanding the scale applicable to Data Entry Operators Grade as
recommended by the V Pay Commission, the petitioners are not willing to extend the same.
Therefore, the first batch of contesting respondents moved the Tribunal with O.A. No. 502 of 2003. The Tribunal held that the Seshagiri
Committee had recommended an uniform scale for EDP employees at different levels and the same was not implemented by the petitioners in the
Department of Posts and Postal Accounts. Even though, the contesting respondents would have had promotion prospects as Junior Accounts
Officers after passing the departmental examinations and would have got an higher scale of pay the same was denied to them. Whenever such
promotions took place, they were not considered for such promotion. It is also stated that the contesting respondents have been working for more
than 16 to 17 years in the same post and it must be taken to be regular posts. Even otherwise whether it is Ex-cadre post or cadre post, there is no
justification for making any discrimination in the grant of prescribed scale of pay. In that view of the matter, the Original Applications were allowed.
It was also brought to the notice of this Court that another Bench of the same Tribunal in O.A.860 of 2004 by its order dated 26.7.2005
dismissed an Original Application by holding that the person who are working as Data Entry Operators in Ex-cadre posts have no right to demand
any appointment in the regular cadre post in the absence of any recruitment rules.
Be that as it may, the question that arises for consideration is whether both the orders of Tribunal impugned in the two writ petitions are legal
and proper.
Mr. V. Parthiban, learned Counsel for the contesting respondents stated that the V Pay Commission has made a recommendation for higher
scale of pay for the post of Data Entry Operators. This recommendation was made pursuant to the report of the Seshagiri Committee. On the
basis of the Committee''s recommendation, the pay Commission made its own recommendation. The learned Counsel also submitted that when the
same post of Data Entry Operators are available in the other department of Government there is no reason as to why persons like the contesting
respondents who are working in the same posts for more than 16 to 17 years should be denied the scale only because their posts are Ex-cadre.
The learned Counsel also brought to the notice of this Court that the post of Data Entry Operators are also available in the Department of Posts
and relied upon a circular dated 21.11.2005.
But it is seen in the circular for the post of Data Entry Operators, the minimum qualification prescribed is Matriculation and a special training
with minimum speed in the Data Entry Operations. The eligibility for appointment was prescribed for Clerks/Typists with two years'' service and
Record Keepers and others with three years'' service. The learned Counsel also brought to the notice that in the other departments, similar scales
have been granted and stated that in the light of the constitutional mandate of Article 39(d), they are eligible to be given equal pay for equal work.
Therefore there was nothing wrong in the orders passed by the Tribunal.
Mr. S.M.Deenadayalan, learned Additional Central Government Standing Counsel further contended that the Tribunal has committed a grave
error by going into the question of pay fixation which is essentially a policy decision and the court cannot give any positive direction. He also stated
that any public employment, creation of posts, appointment in posts, fixation of pay scales are all largely left to the State. In doing so the financial
burden arising out of it had to be necessarily considered by the State and through any direction of a Court. He also submitted that such pay fixation
cannot be done on the basis of any sympathy or compassion and there must be a legal right in their favour. He also submitted that judicial review in
such matters will come into play only if the State action is contrary to constitutional or mandatory provisions of law or either arbitrary or vitiated by
malafides.
In this context, a reference was made to the Judgment of the Supreme Court in S.C. Chandra and Others Vs. State of Jharkhand and Others, .
The following passages found in paragraphs 35 to 37 of the said judgment is usefully extracted below:
para 35....In our opinion fixing pay scales by courts by applying the principle of equal pay for equal work upsets the high constitutional principle of
separation of powers between the three organs of the State. Realising this, this Court has in recent years avoided applying the principle of equal
pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for
examination by an Expert Committee appointed by the Government instead of the court itself granting higher pay).
Para 36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of
appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Govt. of W.B. v. Tarun K. Roy.
Para 37. Similarly, in State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. the principle of equal pay for equal work was considered
in great detail. In paras 9 and 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which
should be left to an expert body. The courts must realise that the job is both a difficult and time consuming task which even experts having the
assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which
is for the executive to discharge. Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse
consequences vide Union of India v. Pradip Kumar Dey
In the light of the above direction given by the Tribunal, both the Original Applications impugned in the writ petition cannot be countenanced by
this Court. At the maximum, the Tribunal could have directed the appropriate Government to consider the case of such persons who are claiming
pay parity or higher scale in commensurate with their posts. We have no hesitation in setting aside the order passed by the Tribunal.
However, V. Parthiban, learned Counsel for contesting respondents submitted that the order of this Court should not prevent them from
approaching the Government with an appropriate request. We have no objection over the contesting respondents to take such course of action. If
they make any representation before the Central Government in the light of the Seshagiri Committee report, it is needless to state that the Central
Government shall consider the same in accordance with law and on merits and any observation made in this order shall not have any bearing on
them.
Since this Court, by an interim order dated 17.8.2005 has directed the payment of such salary with liberty to recover amounts paid depending
upon the result of the writ petition, the counsel for the contesting respondents submitted that till the Central Government takes a decision on the
issue, recoveries should not be made from the salaries in terms of the interim order passed by this Court on 17.8.2005. Though it is beyond the
purview of the writ petition, considering that the contesting respondents wants to seek relief at the hands of the Union of India and this Court has
also held it was for the Union of India to decide such matters, it is hereby stated that if any representation is made by the contesting respondents to
the first writ petitioner, within a period of three weeks from the date of receipt of this order, the first petitioner shall consider and dispose of the
same thereafter within a period of eight weeks. Till such time, the liberty granted in terms of paragraph (c) of the interim order dated 17.8.2005 will
not be operated.
The writ petitions are disposed of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.