Nishant Chawla v. Telecom Disputes Settlement and Appellate Tribunal

9000. Moreover, respondent no. 4 accepted the recommendations made by the Sixth Central Pay Commission after giving careful and due consideration with respect to the civilian employees of the Central Government in Groups „A‟, „B‟, „C‟ and „D‟. It is submitted that the petitioner was entitled to the upgraded pay-scale of Rs. 6500-10500 inter alia on the grounds of historical parity including nature of jobs, functional requirements of the posts, nomenclature of the posts, classification of the posts, identical pay scale attached to the posts and promotional hierarchy of the category of posts with its counterparts in CSS/CSSS. Even the conditions of service of the employees of respondent no. 1 stipulated the same. However, despite that the petitioner was not granted the upgraded pay-scale.

12. It is submitted that prior to the upgradation of Grade Pay from Rs. 4200 to Rs. 4600, Assistants/PAs were in the pay-scale of Rs. 5500-9000 as on 1st January, 2006 and were granted the scale of Rs. 6500-10500 in September 2006. Then, on 13th November, 2009 the respondent no. 4, issued an OM granting the revised pay-scale of Rs. 4600 in pay-band PB- II to persons who were drawing the pre-revised scale of Rs. 6500-10500 as on 1st January, 2006 and who were granted normal replacement of grade pay of Rs. 4200 in the pay-band PB-II. Thereafter, an OM was issued by the respondent no. 4 on 16th November, 2009 in this regard extending the Grade Pay of Rs. 4600 to all the Assistants and PAs of the CSS amongst other organizations with effect from 1st January, 2006. It is submitted that the pay-scale of the petitioner was not upgraded despite the same being done in respect of Assistants and Stenographers Grade „C‟ of CSS/CSSS by the respondent no.2. Furthermore, the petitioner was also denied benefit of upgraded and increased Grade Pay of Rs. 4600 accorded by the respondent no. 4.

13. It is further submitted that there has been historical parity between the Assistants and Stenographer Grade „C‟ working in the DoT and its Territorial Circle Unit, the respondent no. 1 and their counterparts working in CSS and CSSS since the inception of the respondent no. 1, however, this parity was tampered with by the refusal of the grant of the upgraded pay-scale and Grade Pay. This parity can be evidently deduced from, firstly, the orders dated 4th September, 2000 and 7th November, 2000 issued by the respondent no. 3 sanctioning creation of temporary posts with respondent no. 1 clearly suggest of the parity of treatment between the posts of the respondent no. 1 and its counterparts in CSS/CSSS, secondly, the Telecom Disputes Settlement and Appellate Tribunal (Salaries, Allowances and other Conditions of Service of Chairperson and Members) Rules, 2000 (hereinafter “TDSAT Rules”), that regulate the conditions of service of the Chairperson and Members of the respondent no. 1, and stipulate that the pay scale and conditions of service of the Chairperson and Members are to be the same as that of the judges of the Supreme Court and Secretaries to the Government of India, respectively and thirdly, notification of respondent no. 3 dated 2nd August, 2001, that laid down the rules for the Salary, Allowances and Conditions of Service of the Officers and Employees of the respondent no. 1, wherein one category of posts was of Assistants in CSS.

14. It is submitted that the appointment to the post of Stenographer Grade „C‟ in CSSS is done partly by Direct Recruitment and partly by Promotion from the feeder grade of Stenographer Grade 'D'. In terms of the Telecom Disputes Settlement and Appellate Tribunal Group „C‟ and Group „D‟ Posts Recruitment Rules, 2003 notified on 5th June 2003 by the Ministry of Communications & Information Technology, number of posts, classification and scale of pay have been specified in the Schedule attached therein. The classification of posts of Stenographer Grade „D‟ is a General Central Service Group „C‟ Non-Gazetted Ministerial post having a pay scale of Rs. 4000-100-6000 and are required to be filled up by „Direct Recruitment‟, Stenographer Grade „D‟ is the feeder post for the promotion to the post of Stenographer Grade „C‟. Thus, there is parity in the service conditions and pay-scale of the employees of respondent no. 1 with their counterparts in CSS/CSSS.

15. It is further submitted that respondent no. 1 follows the same grade structure as is applicable to CSS/CSSS employees. The functions of the Assistants and Stenographer Grade „C‟ are similar in nature to their counterparts in CSS/CSSS. There is direct recruitment for the post of Stenographers in the Respondent No. 1 which is also in parity with the service conditions in CSS/CSSS. The educational qualification for the post of Stenographer Grade „C‟ in CSSS was Matriculate in the year 2000, when the respondent no. 1 was established and the same qualification was also required for the post of Stenographer Grade C in respondent no. 1. It is, thus, clear that from the very inception of the respondent no. 1 in the year 2000, there has been parity between the employees of respondent no. 1 and CSS/CSSS in terms of pay scales of the posts and promotional hierarchy.

16. It is submitted on behalf of the petitioner that the petitioner made representations to the respondent no. 1, however, vide order dated 27th August, 2012, the respondent no. 1 disposed of the said representation summarily without specifying any reasons. In the said rejection order, reference was made to the orders dated 18th July 2011, whereby the respondent no.3 wrote to the respondent no. 1 that the posts in the respondent no. 1 are filled on deputation basis and there is no element of Direct Recruitment through an All India Competitive Examination. Similarly, the order of respondent no. 1 found mention of order of the respondent no. 3 dated 1st May 2012, wherein it wrote to the respondent no. 1 that the Nodal Ministry, the Ministry of Finance had not found any parity between the Assistants in CSS and Assistants of respondent no. 1. In terms of the said orders, the proposal of upgradation of scale of pay of Assistants/PAs of respondent no. 1 was not accepted.

17. It is submitted that the aforesaid orders are facially unsustainable and unintelligible. They completely omit to consider much less appreciate that appointment of Stenographer Grade „C‟ in the Respondent No. 1 is from the pool of Stenographers available in other Ministries/Departments of the Government of India. The Stenographer Grade „D‟ and „C‟ are appointed inter alia on the basis of an examination conducted by the Staff Selection Commission. In other words, the feeder cadre of the Stenographers is the pool of persons who have qualified the examination conducted by the Staff Selection Commission (hereinafter “SSC”). The petitioner had qualified the All India Examination conducted by the SSC in 1996 and had joined the government service as a direct recruit as Stenographer Grade 'D' with Indian Coast Guard. The petitioner, thereafter, successfully applied for deputation to the Respondent No. 1. Thus, the appointment of the petitioner was through an All India Competitive Examination. This aspect has been completely ignored by the respondents while denying the upgraded pay-scale of Rs.6500-10500 as well as Grade Pay of Rs.4600 to the petitioner, the denial of the upgraded pay-scale as well as consequential benefits including the increased Grade Pay of Rs.4600 is, thus, arbitrary and suffers from patent non-application of mind by the respondents. Therefore, there was no reason for rejecting the petitioner's representation more so on the ground that his appointment was on the deputation basis and not through Direct Recruitment.

18. It is submitted that the denial of the upgraded pay-scale of Rs.6500-10500 with arrears Grade Pay of Rs.4600 with arrears resulted in the denial of fair and due promotion of the petitioner in his services which he was otherwise entitled to and eligible for. The petitioner's counterparts in CSS/CSSS became eligible for promotion after completion of 4 years of service in a post. In the event, that the petitioner was granted the upgraded scale of pay at the relevant time, he would have been granted promotion ante date, i.e., with effect from 14th December 2009 and would be entitled to a non-functional pay scale of Rs. 8000- 13500 and/or Grade Pay of Rs. 5400 with all consequential benefits on the completion of four years in the post of Private Secretary/Court Master in respondent no. 1.

19. The learned senior counsel submits that it is well settled that when there is complete parity, employees in two organizations cannot be discriminated or treated differently. Coordinate benches of this Court have also held that discrimination cannot be allowed even when the appointment is from two different sources. It is vehemently submitted that the mode of recruitment to a post is no ground of denial of the payscale, if post is identical with respect to the pay and function. The grant of pay scale with Grade Pay of Rs. 4600 has been granted to all the employees of CSS/CSSS irrespective of the mode of recruitment of the said employees. Reliance has been placed upon the judgments of the Central Administrative Tribunal in S.R. Dheer and Others vs. Union of India and Others, OA No. 164/2009 dated 19th February, 2009 as well as Sri R. Natrajan and Others vs. The Secretary, Department of Consumer Affairs and Others, OA No.2002/2010 dated 11th November, 2011.

20. It is submitted that in light of all the aforesaid submissions, the impugned order may be set aside and the respondents may be directed to give all benefits of the upgraded pay-scale as well as Grade Pay from the respective dates alongwith other benefits that accrued to them from the year 2009.

21. Per Contra, learned counsel for the respondent vehemently opposed the instant writ petition and submitted that the same is devoid of any merit and is to be dismissed. It is submitted that Grade Pay of Rs.4600 in Pay Band PB-II was granted to Assistants of CSS only for the reason that there was an element of Direct Recruitment to the post through All India Competitive Examination. Whereas the posts of Stenographer „C‟ in TDSAT is concerned, it is submitted that as per communication dated 26th February 2002 of the Ministry of Communication and Information Technology the Post of Stenographer Grade „C‟ in respondent no. 1 is to be filled up on deputation basis, therefore, the petitioner is not entitled to the grade pay of Rs. 4600/-.

22. It is submitted that the Fifth Central Pay Commission as well as Sixth Central Pay Commission made a clear distinction between Secretariat and Non-Secretariat Organizations, and in that process Sixth Pay Commission vide para 3.1.14 recommended that in the case of ministerial post in Non-Secretariat Offices, the posts of Head Clerks, Assistants, Steno Grade II, Office Superintendent, Steno Grade I, Private Secretaries and Administrative Officers Grade III in the respective pay scales of Rs.5000- 8000, Rs.5500-9000 and Rs.6500-10500 will stand merged. Accordingly, the Stenographers Grade „C‟ and Assistant of respondent no. 1 have been placed in the revised pay structure of Rs.9300-34800, that is, Grade Pay Rs. 4200. Since TDSAT is a Non- Secretariat Organization, therefore OM dated 15th September 2006 and 16th November 2009 did not apply to TDSAT and posts of Assistants/PAs have been rightly placed in the revised pay scale of 9300-34800 PB-2 Grade Pay 4200) as per recommendations of 6th Pay Commission.

23. Learned counsel for the respondent has relied on UO NO. 6(12)/E.III(B)/2010 of the Department of Expenditure by which the department has opined as under:- “(i) 5th CPC vide para 46.[9] examined the pay scales of Assistants in the Sectt. vis-a-vis Assistants in subordinate offices in terms of RRs, educational qualification, method and recruitment, duties & responsibilities etc. and observed inter-alia, “……we are of the definite view that the pay scale of Assistants in the Non-Secretariat organizations should slightly be lower as compared to pay scale of Asstt. in the Sectt.

(ii) Pre-revised scales of Assistants of CSS and Assistants in TDSAT were 5500-9000. However, the pay scale of Assistants of CSS was upgraded to 6500-10500 vide this department OM NO.5/2/2004/IC dated 15.09.2006, keeping in view their historical parity with the Inspectors/Analogous posts in CBDT/CBEC, who were granted the scale of pay of Rs.6500-10500 w.e.f. 21.04.2004.

(iii) As per this department's OM dt. 16.11.2009, the

Assistant/Stenographers of CSS/CSSS have been placed in the GP of Rs.4600/- w.e.f. 01.01.2006 keeping in view the fact that there was an element of direct recruitment through All India Competitive Examination. This dispensation has been extended to Assistant/Stenographers working in CSS/CSSS, AFHQS, IFS(B) & RBSS. Therefore, the posts of Assistant/Stenographers Gr. C of TDSAT are not covered by this Department's OM dated 16.11.2009.

(iv) Since, Assistants/PAs of TDSAT were in the prerevised scale of Rs.5500-9000 as on 01.01.1996/01.01.2006 and TDSAT being non- Secretariat Organization, the OM dated 15.09.2006 and 16.11.2009 will not apply to them. As such, they have been rightly placed in the revised pay scale of Rs.9300- 34800 (PB-2 GP 4200) as per recommendations of 6th CPC in para 3.1.14.

(v) The 6th

CPC vide para 3.1.14 recommended that in the case of ministerial post in non-Secretariat offices, the post of Head Clerks, Assistants, Office Superintendants and Administrative Officers Grade III in the respective pay scales of Rs.5000- 8000, 5500-9000 and 6500-10500 will stand merged. Accordingly, the Assistants of TDSAT have been placed in the revised pay structure of Rs.9300- 34800 (PB-2 Grade Pay 4200).

(vi) As per this Department issued OM dated 13.11.2009, the posts which were in the pre-revised scale of Rs.6500- 10500 as on 1.1.2006 and were granted the normal replacement pay structure of GP of Rs.4200/- in PB-2 have been placed in the GP of Rs.4600. Since, the post of Asstt/Stenographers of TDSAT were not in pre-revised pay scale of Rs.6500-10500 as on 1.1.2006, these post are not covered by this Department's OM dated 13.11.2009.

(vii) Pay Commission is expert body which make recommendations on pay and allowances of Central Govt. staff keeping in view all relevant factors like educational qualification, hierarchy, Duties, functional requirement, pre-revised scales etc. The 5th & 6th CPC, in their considered judgment, made a clear distinction between the pay scales of Secretariat and non Secretariat Staff.

3. As regards the extension benefit of this deptt. OM dated 16.11.2009 in respect of Assistants/Court Master/Stenographer Gr. C in CAT, it is stated that a proposal in this regard in pursuance of CAT Principal Bench dated 9.4.2010 in OA No.1165/2010 and MA No.866/2010 was referred to this deptt. by DoPT for consideration. Keeping in view of the fact that historical parity existed between Stenographer Gr. C/Court Masters/Assistants in CAT vis-à-vis Stenographer Gr C/Assistants in CSSS/CSS, the proposal of DoPT for upgradation of the pay scale of Stenographer Gr. C/Court Masters/Assistants from GP of Rs.4200/- to Rs.4600/- w.e.f. 1.1.2006 was agreed to.”

24. It is submitted that the post of Assistant/Stenographers of TDSAT are not covered by the Office Memorandum dated 13th November 2009 as per which the posts which were in the pre-revised pay scale of 6500- 10500 as on 1st January 2006 and were granted the normal replacement pay structure of Grade Pay of Rs.4200 in PB-II have been placed in the Grade Pay of 6500-10500. Consequently, the petitioner is not entitled to grant of Grade Pay of Rs.4600 in PB-II. It is further submitted that the posts of Assistants/Pas of TDSAT were in the pre-revised scale of Rs.5500-9000 as on 1st January 1996 to 1st January 2006 and therefore not covered with OM dated 13th November 2009 and 16th November 2009.

25. Learned counsel for the respondent submitted that the judgment relied upon by the petitioner is not applicable in the present case. It is further submitted that the impugned order dated 27th August 2012 was passed on the opinion of Department of Expenditure/respondent no.4 and the said order was not challenged before this Court. It is vehemently submitted that respondent no.1 has rightly rejected the representation on the aforesaid opinion made by both the departments. There is no illegality or error in the said impugned order. Learned counsel for the respondents submitted that the instant writ petition is misconceived and devoid of any merit and therefore liable to be dismissed.

26. Respondents No.3 and 4 filed the counter affidavit in which they have relied on Office Memorandum dated 16th November 2009 and stated that Grade Pay of Rs.4600 in Pay Band PB-2 was granted to Assistants of Central Secretariat Service only for the reason that there was an element of direct recruitment to the post through All India Competitive Examination. It is further contented that whereas the post of Stenographer „C‟ in TDSAT is, as per communication dated 26th February 2002 of Ministry of Communication and IT to be filled up on deputation basis, therefore, the petitioner is not entitled to the grade pay of Rs.4600. In the counter it is categorically stated that the post of Assistant/Stenographers of TDSAT are not covered by the Office Memorandum dated 13th November 2009, the posts which were in the pre-revised pay scale of Rs. 6500-10500 as on 1st January 2006 and which were granted normal replacement pay structure of Grade Pay Rs.4200 in PB-II have been placed in Grade Pay of Rs.4600. Since the post of Assistant/Stenographer of TDSAT were not in the pre-revised pay scale of Rs.6500-10500 as on 1st January 2006, therefore, the same are not covered by the Office Memorandum dated 13th November 2009, consequently not entitled to grant of grade pay of Rs.4600 in PB-2.

27. In the reply, the petitioner has filed the rejoinder affidavit and denied the contentions of counter affidavit. It is contended that the objections raised by the respondents in the counter affidavit are vague, baseless and misconceived. It is also contended that the petitioner is entitled to an upgraded pay scale on the basis of historical parity with his counterparts in the CSS/CSSS as well as on the principles of 'Equal Pay for Equal Work'. It is also contended that the upgradation in the payscale in terms of OMs dated 25th September 2006 and 16th November 2009 does not apply to the petitioner being an employee with the TDSAT, which is a Non-Secretariat Organisation. It is further contended that the petitioner in April 1998, qualified an All India Competitive Exam conducted by the Staff Selection Commission and was inducted into the Government service as Stenographer Grade 'D'. The Petitioner joined the Indian Coast Guard at New Delhi. Thereafter, the Petitioner joined the respondent no. 1 on deputation basis as a Stenographer Grade „C‟ in the year 2005. It is vehemently submitted that the appointment to the post of Stenographer Grade 'C‟ in the CSSS is done partly by Direct Recruitment and partly by promotion from the feeder post i.e. Stenographer Grade 'D'. It is also contended that the Recruitment Rules for the Group 'A' and Group 'B' posts in the Respondent No. 1 are yet to be finalized by Respondent No. 3 even after a passage of 14 years from the inception of TDSAT.

28. It is contented that the petitioner was directly recruited to the post of Stenographer Grade „D‟ in the Indian Coast Guard Service. Stenographer Grade „D‟ is a feeder post for promotion as a Stenographer Grade „C‟ in TDSAT. Thus, the objection of the Respondent in this regard suffers from manifest infirmity and inconsistency. In any event, the mode of recruitment cannot be the sole criterion for denial of the grade pay of Rs. 4600 to the petitioner.

29. The petitioner has also contended about the effect of OMs dated 13th November 2009 and 16th November 2009 in paragraphs 5.[1] to 5.[5] of the rejoinder. It is contended that the respondents have adopted a policy which is patently erroneous and suffers from considerable laches in that the legitimate expectations of the Petitioner have not been examined by the Respondents fairly and expeditiously. In the rejoinder affidavit it is contended that the rejoinder of the representation vide impugned order dated 27th August 2012 is without application of judicious mind, contrary to law laid down by this Court as well the by the Hon‟ble Supreme Court.

ANALYSIS AND FINDINGS

30. Heard learned counsel for the parties and perused the record.

31. Admittedly, the respondent no. 2, vide OM No. 20/29/2006-CSII dated 25th September, 2006, upgraded the pay-scale to Rs. 6500-10500 from Rs. 5500-9000 in respect of Stenographers Grade „C‟ CSSS and Assistants in CSS. Thereafter, the Sixth Central Pay Commission merged three pay-scales, that is, Rs. 5000-8000, Rs. 5500-9000 and Rs. 6500- 10500 into the revised pay-band of Rs. 9300-34800 with Grade Pay of Rs. 4200 in PB-II. The Respondent No.2 further increased the Grade Pay of Rs. 4200 to Rs. 4600 with respect to Stenographers Grade „C‟ working in CSSS and Assistants in CSS in terms of Office Memorandum issued by Department of Expenditure/Respondent No. 4 on 16th November,

2009.

32. The issue before this Court can be simplified and narrowed down to whether there is parity between the position of Stenographers/Assistants in CSSS/CSS and Stenographers Grade „C‟ in the respondent no. 1/ Telecom Disputes Settlement and Appellate Tribunal for adjudicating the question as to whether the petitioner is entitled for the benefits arising out of the aforesaid OMs issued by the respondents or not.

33. The word parity, in its simplest and truest sense, means equality or being at par. Such equality can be of position, rank, value or condition when seen in the context of service and the benefits that arise from such service. The test of parity also starts to hold a greater significance when seen on the touchstone of equality, as has been guaranteed under Article 14 of the Constitution of India. The test, hence, is to be considered with the utmost care and consideration when the question of rights of the civilian employees are in question with respect to their work and pay. more particularly when the benefits accruing to two similarly placed positions are to be evaluated. The principle of equal pay for equal work needs to be kept in mind while considering this expansive interpretation of Article 14 of the Constitution and the rights arising thereto.

34. In Federation of All India Customs and Central Excise Stenographers vs. Union of India, (1988) 3 SCC 91, the Hon'ble Supreme Court observed as under on the question of „Equal Pay for Equal Work‟:-

(c) While equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for the courts, where all things are equal i.e. where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.

(d) The principle of equal pay for equal work is not an abstract doctrine when applied to government servants performing similar functions and having identical powers, duties and responsibilities. (e) As matter of interpretation, the Directive Principles, e.g. Article 39(d) of the Constitution, have to be and have been read into the Fundamental Rights, e.g. Articles 14 and 16 of the Constitution. So read, the principle of equal pay for equal work, though not expressly declared by our Constitution to be a fundamental right, is a constitutional goal. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), the principle of “Equal pay for equal work” is deducible from those articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.”

35. The principle, with reference to similar posts under same organisation, has been discussed by the Hon‟ble Supreme Court in Mewa Ram Kanojia vs. All India Institute of Medical Sciences, (1989) 2 SCC 235, as under:

36. Further, in Union of India vs. Dineshan K.K., (2008) 1 SCC 586, the following observations were made by the Hon‟ble Supreme Court:-

37. While considering the issue of “Equal Pay for Equal Work” and parity in employment, the Hon‟ble Supreme Court in the case of Govt. of W.B. vs. Tarun K. Roy, (2004) 1 SCC 347, held as under:

38. Other important considerations have been observed by the Hon‟ble Supreme Court while passing the judgement in Official Liquidator vs. Dayanand, (2008) 10 SCC 1 that can be found in the following paragraphs as reproduced hereunder:- “94. The principle of equal pay for equal work for men and women embodied in Article 39(d) was first considered in Kishori Mohanlal Bakshi v. Union of India [AIR 1962 SC 1139] and it was held that the said principle is not capable of being enforced in a court of law. After 36 years, the issue was again considered in Randhir Singh v. Union of India [(1982) 1 SCC 618: 1982 SCC (L&S) 119], and it was unequivocally ruled that the principle of equal pay for equal work is not an abstract doctrine and can be enforced by reading it into the doctrine of equality enshrined in Articles 14 and 16 of the Constitution of India.

95. The ratio of Randhir Singh v. Union of India [(1982) 1 SCC 618: 1982 SCC (L&S) 119] was reiterated and applied in several cases—Dhirendra Chamoli v. State of U.P. [(1986) 1 SCC 637: 1986 SCC (L&S) 187], Surinder Singh v. CPWD [(1986) 1 SCC 639: 1986 SCC (L&S) 189], Daily Rated Casual Labour v. Union of India [(1988) 1 SCC 122: 1988 SCC (L&S) 138: (1987) 5 ATC 228], Dharwad Distt. PWD Literate Daily Wage Employees Assn. v. State of Karnataka [(1990) 2 SCC 396: 1990 SCC (L&S) 274: (1990) 12 ATC 902] and Jaipal v. State of Haryana [(1988) 3 SCC 354: 1988 SCC (L&S) 785: (1988) 7 ATC 771] and it was held that even a daily-wage employee who is performing duties similar to regular employees is entitled to the same pay. However, in Federation of All India Customs and Central Excise Stenographers v. Union of India [(1988) 3 SCC 91: 1988 SCC (L&S) 673: (1988) 7 ATC 591], Mewa Ram Kanojia v. AIIMS [(1989) 2 SCC 235: 1989 SCC (L&S) 329: (1989) 10 ATC 51], V. Markendeya v. State of A.P. [(1989) 3 SCC 191: 1989 SCC (L&S) 454: (1989) 11 ATC 3], Harbans Lal v. State of H.P. [(1989) 4 SCC 459: 1990 SCC (L&S) 71: (1989) 11 ATC 869], State of U.P. v. J.P. Chaurasia [(1989) 1 SCC 121: 1989 SCC (L&S) 71: (1988) 8 ATC 929], Grih Kalyan Kendra Workers' Union v. Union of India [(1991) 1 SCC 619: 1991 SCC (L&S) 621: (1991) 16 ATC 507], GDA v. Vikram Chaudhary [(1995) 5 SCC 210: 1995 SCC (L&S) 1226: (1995) 31 ATC 129], State of Haryana v. Jasmer Singh [(1996) 11 SCC 77: 1997 SCC (L&S) 210], State of Haryana v. Surinder Kumar [(1997) 3 SCC 633: 1997 SCC (L&S) 844], Union of India v. K.V. Baby [(1998) 9 SCC 252: 1998 SCC (L&S) 539], State of Orissa v. Balaram Sahu [(2003) 1 SCC 250: 2003 SCC (L&S) 65], Utkal University v. Jyotirmayee Nayak [(2003) 4 SCC 760: 2003 SCC (L&S) 598], State of Haryana v. Tilak Raj [(2003) 6 SCC 123: 2003 SCC (L&S) 828], Union of India v. Tarit Ranjan Das [(2003) 11 SCC 658: 2004 SCC (L&S) 160], Apangshu Mohan Lodh v. State of Tripura [(2004) 1 SCC 119: 2004 SCC (L&S) 10], State of Haryana v. Charanjit Singh [(2006) 9 SCC 321: 2006 SCC (L&S) 1804], Hindustan Aeronautics Ltd. v. Dan Bahadur Singh [(2007) 6 SCC 207: (2007) 2 SCC (L&S) 441], Kendriya Vidyalaya Sangathan v. L.V. Subramanyeswara [(2007) 5 SCC 326: (2007) 2 SCC (L&S) 143] and Canteen Mazdoor Sabha v. Metallurgical & Engg. Consultants (India) Ltd. [(2007) 7 SCC 710: (2007) 2 SCC (L&S) 758], the Court consciously and repeatedly deviated from the ruling of Randhir Singh v. Union of India [(1982) 1 SCC 618: 1982 SCC (L&S) 119] and held that similarity in the designation or quantum of work are not determinative of equality in the matter of pay scales and that before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment, the qualifications, the nature of work, the value judgment, responsibilities, reliability, experience, confidentiality, functional need, etc.

96. In State of Haryana v. Jasmer Singh [(1996) 11 SCC 77: 1997 SCC (L&S) 210] the two-Judge Bench laid down the following principle: (SCC p. 81, para 8)

97. In Harbans Lal v. State of H.P. [(1989) 4 SCC 459: 1990 SCC (L&S) 71: (1989) 11 ATC 869] the Court held that the claim of carpenters employed by an incorporated company for parity in wages payable to their counterparts in government service is unsustainable.

98. In Jawaharlal Nehru Technological University v. T. Sumalatha [(2003) 10 SCC 405: 2004 SCC (L&S) 219] it was held that the respondents who were employed under a scheme known as National Technical Manpower Information System, which was sponsored by the then Ministry of Education and Culture, cannot claim parity with the regular government employees in the matter of pay scale.

99. In Canteen Mazdoor Sabha v. Metallurgical & Engg. Consultants (India) Ltd. [(2007) 7 SCC 710: (2007) 2 SCC (L&S) 758] another two-Judge Bench held that simply because some employees of a contractor of the alleged head employer are performing the task or duties similar to the employees of the head employer, it will not entitle such employees to claim parity.”

39. The Hon‟ble Supreme Court in State of Punjab vs. Jagjit Singh, (2017) 1 SCC 148, has extensively dealt with the issue at hand in case of temporary and regular employees and referring to several precedents, it has observed as under:

42.3. The principle of “equal pay for equal work”, applies to cases of unequal scales of pay, based on no classification or irrational classification (see Randhir Singh case [Randhir Singh v. Union of India, (1982) 1 SCC 618: 1982 SCC (L&S) 119] ). For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity (see Federation of All India Customs and Central Excise Stenographers case [Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91: 1988 SCC (L&S) 673], Mewa Ram Kanojia case [Mewa Ram Kanojia v. All India Institute of Medical Sciences, (1989) 2 SCC 235: 1989 SCC (L&S) 329], Grih Kalyan Kendra Workers' Union case [Grih Kalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619: 1991 SCC (L&S) 621] and S.C. Chandra case [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279:

42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of “equal pay for equal work” (see Randhir Singh case [Randhir Singh v. Union of India, (1982) 1 SCC 618: 1982 SCC (L&S) 119], State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. [State of Assn., (2002) 6 SCC 72: 2002 SCC (L&S) 822] and Hukum Chand Gupta case [Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666: (2013) 3 SCC (L&S) 493] ). Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature.

42.5. In determining equality of functions and responsibilities under the principle of “equal pay for equal work”, it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible (see Federation of All India Customs and Central Excise Stenographers case [Federation of All India Customs and Central Excise Stenographers v. Union of India, (1988) 3 SCC 91: 1988 SCC (L&S) 673] and SBI case [SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556: 2002 SCC (L&S) 568] ). The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of “equal pay for equal work” (see State of U.P. v. J.P. Chaurasia [State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121: 1989 SCC (L&S) 71] and Grih Kalyan Kendra Workers' Union case [Grih Kalyan Kendra Workers' Union v. Union of India, (1991) 1 SCC 619: 1991 SCC (L&S) 621] ).

42.6. For placement in a regular pay scale, the claimant has to be a regular appointee. The claimant should have been selected on the basis of a regular process of recruitment. An employee appointed on a temporary basis cannot claim to be placed in the regular pay scale (see Orissa University of Agriculture & Technology case [Orissa University of Agriculture & Technology v. Manoj K. Mohanty, (2003) 5 SCC 188:

42.7. Persons performing the same or similar functions, duties and responsibilities, can also be placed in different pay scales. Such as — “selection grade”, in the same post. But this difference must emerge out of a legitimate foundation, such as — merit, or seniority, or some other relevant criteria (see State of U.P. v. J.P. Chaurasia [State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121: 1989 SCC (L&S) 71] ).

42.8. If the qualifications for recruitment to the subject post vis-à-vis the reference post are different, it may be difficult to conclude that the duties and responsibilities of the posts are qualitatively similar or comparable (see Mewa Ram Kanojia case [Mewa Ram Kanojia v. All India Institute of Medical Sciences, (1989) 2 SCC 235: 1989 SCC (L&S) 329] and State of W.B. v. Tarun K. Roy [State of W.B. v. Tarun K. Roy, (2004) 1 SCC 347: 2004 SCC (L&S) 225] ). In such a case the principle of “equal pay for equal work” cannot be invoked.

42.9. The reference post with which parity is claimed under the principle of “equal pay for equal work” has to be at the same hierarchy in the service as the subject post. Pay scales of posts may be different, if the hierarchy of the posts in question, and their channels of promotion, are different. Even if the duties and responsibilities are same, parity would not be permissible, as against a superior post, such as a promotional post (see Union of India v. Pradip Kumar Dey [Union of India v. Pradip Kumar Dey, (2000) 8 SCC 580: 2001 SCC (L&S) 56] and Hukum Chand Gupta case [Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666: (2013) 3 SCC (L&S) 493] ).

42.10. A comparison between the subject post and the reference post under the principle of “equal pay for equal work” cannot be made where the subject post and the reference post are in different establishments, having a different management. Or even, where the establishments are in different geographical locations, though owned by the same master (see Harbans Lal case [Harbans Lal v. State of H.P., (1989) 4 SCC 459: 1990 SCC (L&S) 71] ). Persons engaged differently, and being paid out of different funds, would not be entitled to pay parity (see Official Liquidator v. Dayanand [Official Liquidator v. Dayanand, (2008) 10 SCC 1: (2009) 1 SCC (L&S) 943] ).

42.11. Different pay scales, in certain eventualities, would be permissible even for posts clubbed together at the same hierarchy in the cadre. As for instance, if the duties and responsibilities of one of the posts are more onerous, or are exposed to higher nature of operational work/risk, the principle of “equal pay for equal work” would not be applicable. And also when the reference post includes the responsibility to take crucial decisions, and that is not so for the subject post (see SBI case [SBI v. M.R. Ganesh Babu, (2002) 4 SCC 556:

42.12. The priority given to different types of posts under the prevailing policies of the Government can also be a relevant factor for placing different posts under different pay scales. Herein also, the principle of “equal pay for equal work” would not be applicable (see State of Assn. [State of Haryana v. Haryana Civil Secretariat Personal Staff Assn., (2002) 6 SCC 72: 2002 SCC (L&S) 822] ).

42.13. The parity in pay, under the principle of “equal pay for equal work”, cannot be claimed merely on the ground that at an earlier point of time the subject post and the reference post, were placed in the same pay scale. The principle of “equal pay for equal work” is applicable only when it is shown, that the incumbents of the subject post and the reference post, discharge similar duties and responsibilities (see State of W.B. v. Minimum Wages Inspectors Assn. [State of W.B. v. W.B. Minimum Wages Inspectors Assn., (2010) 5 SCC 225: (2010) 2 SCC (L&S) 1] ).

42.14. For parity in pay scales under the principle of “equal pay for equal work”, equation in the nature of duties is of paramount importance. If the principal nature of duties of one post is teaching, whereas that of the other is non-teaching, the principle would not be applicable. If the dominant nature of duties of one post is of control and management, whereas the subject post has no such duties, the principle would not be applicable. Likewise, if the central nature of duties of one post is of quality control, whereas the subject post has minimal duties of quality control, the principle would not be applicable (see U.T. Chandigarh, Admn. v. Manju Mathur [U.T. Chandigarh, Admn. v. Manju Mathur, (2011) 2 SCC 452: (2011) 1 SCC (L&S) 348] ).

42.15. There can be a valid classification in the matter of pay scales between employees even holding posts with the same nomenclature i.e. between those discharging duties at the headquarters, and others working at the institutional/sub-office level (see Hukum Chand Gupta case [Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666: (2013) 3 SCC (L&S) 493] ), when the duties are qualitatively dissimilar.

42.16. The principle of “equal pay for equal work” would not be applicable, where a differential higher pay scale is extended to persons discharging the same duties and holding the same designation, with the objective of ameliorating stagnation, or on account of lack of promotional avenues (see Hukum Chand Gupta case [Hukum Chand Gupta v. ICAR, (2012) 12 SCC 666: (2013) 3 SCC (L&S) 493] ).

42.17. Where there is no comparison between one set of employees of one organisation, and another set of employees of a different organisation, there can be no question of equation of pay scales under the principle of “equal pay for equal work”, even if two organisations have a common employer. Likewise, if the management and control of two organisations is with different entities which are independent of one another, the principle of “equal pay for equal work” would not apply (see S.C. Chandra case [S.C. Chandra v. State of Jharkhand, (2007) 8 SCC 279: (2007) 2 SCC (L&S) 897: 2 SCEC 943] and National Aluminium Co. Ltd. case [National Aluminium Co. Ltd. v. Ananta Kishore Rout, (2014) 6 SCC 756: (2014) 2 SCC (L&S) 353] ).”

40. In Union of India vs. Manoj Kumar, 2021 SCC OnLine SC 646, while overturning the impugned judgment granting parity, the Hon‟ble Supreme Court observed as under:

41. The Hon‟ble Supreme Court, most recently in State of Madhya Pradesh & Ors. vs. Seema Singh, Civil Appeal No. 3892 of 2022 on 12th May 2022, while adjudicating a similar question which is before this Court, observed as under:- “In Ramesh Chandra Bajpai (supra), this Court further held that it was well-settled that the doctrine of equal pay for equal work could only be invoked when the employees were similarly circumstanced in every way. Mere similarity of designation or similarity or quantum of work was not determinative of equality in the matter of pay scales. The Court had to consider all the relevant factors such as the mode of recruitment, qualifications for the post, the nature of work, the value of work, responsibilities involved and various other factors.

19. In the instant case, it would be pertinent to note that the eligibility criteria for appointment of Museum Assistant-cum- Librarian under the 1987 Rules was different from the eligibility criteria of appointment of Librarian under the 1990 Rules. Under the 1987 Rules, the minimum qualification for the post of Museum Assistant cum Librarian was graduate but under the 1990 Rules, the minimum qualification was post graduate degree.”

42. The abovementioned precedents lay down the several considerations to be borne in mind while deciding the issue of parity between two posts, whether in the same organisation or across different organisations/departments. There is definitely no mathematical application of the principle of parity and „Equal Pay for Equal Work‟ and it is the Courts of the country that have laid down various factors for deciding the question of parity amongst different designations. While similar nature of work, responsibilities, duties and reliabilities are relevant considerations, qualifications, mode of recruitment as well as merit has also been observed to be significant factors while evaluating parity and consequent question of equality of pay scale. Parity between two or more positions may be drawn when there is no intelligible differentia found in the nature of work and responsibilities of the two. The position of law is also settled when a person claiming parity of pay scales with the class or category had been situated in the past at par in the equivalent pay scale with the counterparts with whom such parity is claimed, the question of historical parity amongst such counterparts may be said to be established.

43. Although the Hon‟ble Supreme Court has reiterated time and again that „Equal Pay for Equal Work‟ is a constitutional goal, and by and large the precedents have also acknowledged and resolved the issue of disparity amongst and across institutions, there is no absolute application of the principle by default, within or across organisations/departments. Organisations as well as the government have the liberty to set different pay scale, where they make a reasonable, valid and intelligible classification for employees placed at similar grades and work profiles. However, it is crucial that this classification does not discriminate between employees who have identical work, in terms of nature of such work, responsibility involved, confidentiality, qualifications, mode of recruitment and other such significant factors. Irrational classification and apparent discrimination cannot be justified where employees placed at an identical position are treated differently, whether working under the same employer or placed in different public departments.

44. The fundamental principle, hence, is how closely a nexus or similarity can be found between two post/positions in different organisations/departments and how this nexus should affect the pay for the employees appointed in this position. The above laid principles by the Hon‟ble Supreme Court are also to be read in consonance with the Reports of the Sixth Central Pay Commission as well as the Seventh Central Pay Commission. The Sixth Pay Commission observed that the field offices are at the cutting edge of administration and may, in most cases, determine whether a particular policy turns out to be a success or a failure in terms of actual benefit to the consumer. It noted that time has come to grant parity between similarly placed personnel employed in field offices and in the Secretariat but with due attention to hierarchy and career progression as well as the functional considerations and relativities. The Commission consolidated different cadres and placed them under one pay scale and also strongly recommended parity between organisations that have historical parity. The Report of the Sixth Central Pay Commission thereby recommended full parity between Secretariat Offices.

45. Reference is deemed necessary to be made to the Report of the Seventh Central Pay Commission as well which discussed the issue of parity between the Secretariat and field offices. The relevant part is reproduced hereunder:- “The Commission accordingly strongly recommends parity in pay between the field staff and headquarter staff up to the rank of Assistants on two grounds- firstly the field staff are recruited through the same examination and they follow the same rigour as the Assistants of CSS and secondly there is no difference in the nature of functions discharged by both. Therefore to bring in parity as envisaged by the VI CPC, this Commission recommends bringing the level of Assistants of CSS at par with those in the field offices who are presently drawing GP 4200. Accordingly, in the new pay matrix the Assistants of both Headquarters as well as field will come to lie in Level 6 in the pay matrix corresponding to pre revised GP 4200 and pay fixed accordingly. Similarly the corresponding posts in the Stenographers cadre will also follow similar pay parity between field and headquarter staff. The pay of those Assistants/Stenographer who have in the past, been given higher Grade pay would be protected. Recently, through a government order similar „edge in pay‟ has also been extended to the Upper Division Clerks belonging to CSS in the Secretariat by way of grant of non-functional selection grade to GP 4200 (available to 30 percent of UDCs). It is expected to lead to further resentment at the level of UDCs in the field as well as with other non-secretariat posts with which they had parity before. Since as per the recommendation of this Commission, Assistants have now come to lie in Level 6 of the pay matrix which corresponds to pre revised GP 4200, this Commission recommends withdrawal of nonfunctional selection grade to GP 4200 in respect of Upper Division Clerks belonging to CSS.”

46. The Central Pay Commission being the expert body for deciding the matters of pay scale and pay grades also recommends that there should be parity between similarly placed employees. However, it lays down certain conditions and factors that help to ascertain whether there is a nexus or parity between two otherwise apparently similar posts and mentions two grounds, that is, similar mode of recruitment and nature of work. The expert Commission thereby lays down reasonable and legitimate classification while deciding whether such parity even exists.

47. In the instant matter, parity is being sought in terms of position of employment and the subsequent benefits that accrue to the employees carrying out similar duties and having equal or identical conditions, nature and degree of work while holding the said position of employment at the Telecom Disputes Settlement and Appellate Tribunal and the Secretariat.

48. The petitioner was placed in the pay scale of Rs. 5500-6000, whereas, it has been alleged that counterparts in the CSSS have been placed under the pay-scale of Rs. 6500-10500. However, keeping in view the recommendations of the Commission as well as the opinion of the Hon‟ble Supreme Court, it is found that to establish parity in employment, more significant factors including qualifications and mode of recruitment are to be given equal consideration. The question, hence, is whether the process of recruitment for the concerned position of Stenographers in CSSS and respondent no. 1 is on the same footing or not. It is the case of the respondents that the position under the CSSS is filled by way of direct recruitment by way of clearing the All-India Competitive Examination whereas under the respondent no. 1 the position is to be occupied on deputation basis, without passing of any competitive examination. The petitioner contends that he cleared the All India Competitive Examination in the year 1996 and was inducted as Stenographer Grade „D‟ and joined the Indian Coast Guard as a direct recruit and thereafter, when the positions were created with the respondent no. 1, which were to be filled up from amongst the officials from all Ministries/Departments of Government on deputation basis, the petitioner was appointed/absorbed at his current position. However, the relevant factor to draw parity between the position he currently holds and that at the CSSS is how he was recruited at his current position and not when he entered in the field.

CONCLUSION

49. For any benefit to be accrued to an employee, even for promotions etc., qualifications and merit are few of the crucial considerations. A discrimination, which is irrational without any intelligible differentia cannot be invidiously placed upon a person in the matter of pay scale. However, qualification and mode of recruitment cannot be said to be irrationally placed factors. Moreover, it cannot be said that the petitioner working at the respondent no. 1 has the same rigours as that of the Secretariat in terms of the requirement for recruitment, since, an employee being deputed cannot be placed at par with an employee appearing for and clearing a competitive examination where only a selected few fill up the position at Ministerial organisation from amongst thousands of those appearing for the examination. A classification based on selection and qualification as well as merit cannot be said to be unreasonable and therefore, the parity sought by the petitioner is beyond the scope as interpreted by the Hon‟ble Supreme Court.

50. Keeping in view the above facts and circumstances, the position of law and precedents as well as fact that there is an apparent disparity between the position held by the petitioner with the respondent no. 1 and his counterparts at the CSSS, this Court is of the considered view that the petitioner is not entitled to any benefit sought and prayed by him of an upgraded pay scale. It is found that there is no error in the order dated 27th August 2012 passed by the respondent no. 1 rejecting the representation by the petitioner.

51. Accordingly, the instant petition stands dismissed for being devoid of any merit.

52. Pending application, if any, also stands disposed of.

53. The judgment be uploaded on the website forthwith.

JUDGE JULY 12, 2022 Aj/Ms