SECR., DEPT.OF PERS., PUB.GR.& PENS.& ANR. Vs. T.V.L.N.MALLIKARJUNA RAO : Supreme Court - Article 309 of the Constitution of India
Supreme Court of India
CIVIL APPEAL NO. 10862 OF 2014 Judgment Date: Dec 09, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 10862 OF 2014
(arising out of SLP(C) No.26977 of 2010)
SECRETARY, DEPARTMENT OF PERSONNEL, ... APPELLANTS
PUBLIC GRIEVANCES & PENSION & ANR.
VERSUS
T.V.L.N. MALLIKARJUNA RAO ... RESPONDENTS
With
CIVIL APPEAL NOS. 10863-10864 OF 2014
(arising out of SLP(C) Nos.28595-96 of 2010)
UNION OF INDIA & ORS. ... APPELLANTS
VERSUS
S.D. BHANGALE & ORS. ETC.ETC. ... RESPONDENTS
With
CIVIL APPEAL NO. 10865 OF 2014
(arising out of SLP(C) No.31613 of 2011)
UNION OF INDIA & ORS. ... APPELLANTS
VERSUS
V. AMBI & ORS. ... RESPONDENTS
With
CIVIL APPEAL NO. 10866 OF 2014
(arising out of SLP(C) Nos.3306 of 2012)
UNION OF INDIA & ORS. ... APPELLANTS
VERSUS
SUNJAY GURVEKAR . ... RESPONDENT
With
CIVIL APPEAL NO. 10867 OF 2014
(arising out of SLP(C) Nos.3956 of 2013)
UNION OF INDIA & ORS. ... APPELLANTS
VERSUS
SATYENDRA PRASAD & ORS. ... RESPONDENTS
J U D G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
Delay condoned. Leave granted.
2. The respondents who were posted in different departments in the
Ministries of Union of India as Data Entry Operator Grade 'A', moved
applications before the Central Administrative Tribunals for grant of pay
scale of Rs.1350-2200 with effect from 1st January, 1986. The Tribunal
allowed the applications. The judgment and orders passed by the Tribunal
having affirmed by the High Court are under challenge in these appeals.
3. The facts leading to the cases are as follows:
A number of posts of Electronic Data Processing were created in the
different departments of Ministries of the Government of India. Persons
were appointed against such Electronic Data Processing posts with different
nomenclatures likewise Key-Punch Operator, Punch Verifying Operator,
Planning Assistant, Punch-cum-Verifier, Technical Assistant, Punch-cum-
Verifier (Hollerith), etc.
4. Fourth Central Pay Commission made a suggestion in paragraph 11.45 of
its report that the department of Electronics should examine the matter and
suggest reorganisation of existing Electronic Data Processing posts and
prescribe uniform pay scales and designations in consultation with the
Department of Personnel & Training. In pursuance of above suggestion, a
Committee had been set up by the Department of Electronics in November,
1986. After careful consideration of the recommendations made by the said
Committee, Government of India has decided to introduce pay structure for
Electronic Data Processing posts by Ministry's O.M. No.F.7(1)/IC/86(44)
dated 11th September, 1989, relevant portion of which reads as follows:
"No.F.7(1)/IC/86(44)
Government of India
Ministry of Finance
Department of Expenditure
Implementation Cell
New Delhi, dated 11th Sept: 89
OFFICE MEMORANDUM
Sub: Rationalisation of pay scales of Electronic Data
Processing posts:
The undersigned is directed to refer to the recommendations of Fourth
Central Pay Commission contained in paragraph 11.45 of the Report wherein
it was suggested that the department of Electronic should examine and
suggest reorganisation of existing Electronic Data Processing posts and
prescribe uniform pay scales and designations in consultation with the
Department of Personnel. In pursuance of above suggestion, a Committee had
been set up by Department of Electronics in November, 1986. After careful
consideration of the recommendations made by this Committee, Government of
India has decided to introduce following pay structure for Electronic Data
Processing posts:-
|S. No. |Designation of |Pay scale | |
| |post | | |
|1. |Data Entry |Rs.1150-1500 |This will be entry Grade |
| |Operator Grade | |for Higher Secondary |
| |'A' | |with |
| | | |knowledge of Data Entry |
| | | |work. |
|2. |Data Entry |Rs.1350-2200 |This will be entry grade |
| |Operator Grade | |for graduate with |
| |'B' | |knowledge of Data Entry |
| | | |work of promotional Grade|
| | | |for Data Entry Operator |
| | | |Grade 'A' |
|3. |Data Entry |Rs.1400-2300 |Promotional Grade |
| |Operator Grade | | |
| |'C' | | |
|4. |Data Entry |Rs.1600-2660 |Promotional Grade |
| |Operator Grade | | |
| |'D' | | |
|5. |Data Entry |Rs.2000-3500 |Promotional Grade |
| |Operator Grade | | |
| |'E' | | |
|Data Processing/Programming Staff |
|1. |Data Processing |Rs.1600-2260 |Entry Grade for Graduates|
| |Assistant Grade | |with |
| |'A' | |Diploma/certificate in |
| | | |Computer |
| | | |Applications. |
|2. |Data Processing |Rs.2000-3200 |Promotional Grade |
| |Assistant Grade | | |
| |'B' | | |
|3. |Programmer |Rs.2375-3500 |Direct Entry for holders |
| | | |of Degree in Engineering |
| | | |or post-graduation in |
| | | |Science/Maths etc. or |
| | | |post graduation in |
| | | |Computer |
| | | |Application |
| | | |Or |
| | | |By promotion from Data |
| | | |Processing Assistant |
| | | |Grade 'B' |
|4. |Senior Programmer|Rs.3000-4500 |Promotional Grade |
All Ministers/Department having Electronic Data Processing posts under
their administrative control will review the designation, pay scales and
recruitment qualification of their posts and revise the same in
consultation with their Financial Advisor to the extent necessary as per
pay structure indicated in para 1 above. Where it is found necessary to
revise the pay scale of existing post notification will be issued by
concerned Ministry/Department and copy of the notification and order will
be sent to Implementation Cell and Department of Expenditure. The revised
pay scales will be operative from the date of issue of notification by
concerned Ministry/Department.
If as a result of above review, pay scale of any post undergoes a change
the pay of existing incumbents will be fixed as per fundamental Rule 23
read with FR 22(a)(ii).
The review suggested in para 2 above will be made only with reference to
existing Electronic Data Processing posts and it will not be necessary to
create all the grades in all Ministries/Departments, as it will depend on
requirements of user Department. If Ministry/Department proposes to create
any grade which is not existing at present it will be done with approval of
financial advisors and subject to procedures laid down for the purpose.
The qualifications etc. indicated against each grade in para 1 above are
only illustrative and Departments/Ministries will carry out the review of
existing EDP posts in accordance with recruitment rules as already
prescribed by them. To ensure uniformity in regard to Recruitment Rules for
the EDP posts, Department of Personnel & Training is being requested to
devise model Recruitment Rules which can be adopted by
Ministry/Department."
5. The Department of Personnel and Training, Ministry of Personnel,
Public Grievances & Pensions, Government of India by O.M. No.AB 14017/75/89-
Estt.(RR) dated 13th February, 1990 forwarded a copy of the Model
Recruitment Rules for various categories of posts in the Electronic Data
Processing Discipline. The Model Recruitment Rules are based on the
suggestions contained in the Department of Expenditure's O.M.
No.F.7(1)/IC/86(44) dated 11th September, 1989. In the said Model
Recruitment Rules the following grades of Data Entry Operators with scales
of pay and qualifications were shown:
|S. No. |Designation of |Pay scale | |
| |post | | |
|1. |Data Entry |Rs.1150-25-1500 |This will be entry Grade |
| |Operator Grade | |for Higher Secondary |
| |'A' | |with |
| | | |knowledge of Data Entry |
| | | |work. |
| | | |Direct Recruitment. |
|2. |Data Entry |Rs.1350-30-1440-|This will be entry grade |
| |Operator Grade |40-1800-EB-50-22|for graduate with |
| |'B' |00 |knowledge of Data Entry |
| | | |work of promotional Grade |
| | | |for Data Entry Operator |
| | | |Grade 'A' failing which by|
| | | |transfer on deputation, |
| | | |and percentage by direct |
| | | |recruitment. |
|3. |Data Entry |Rs.1400-40-1800-|Promotional Grade from |
| |Operator Grade |EB-50-2300 |Data Entry Operator Grade |
| |'C' | |'B' failing which by |
| | | |transfer on |
| | | |deputation. |
|4. |Data Entry |Rs.1600-50-2300-|Promotional Grade from |
| |Operator Grade |EB-60-2660 |Data Entry Operator Grade |
| |'D' | |'C' failing which by |
| | | |transfer on |
| | | |deputation. |
|5. |Data Processing |Rs.1600-50-2300-|Degree of a recognized |
| |Assistant Grade |EB-60-2660 |University or equivalent |
| |'A' | |with Science, Mathematics,|
| | | |Economics, Commerce, |
| | | |Statistics. Direct |
| | | |recruitment. |
6. The President of India in exercise of powers conferred by the proviso
to Article 309 of the Constitution of India issued a Rule from Department
of Revenue, Government of India regulating the method of recruitment to
Group 'C' (Technical) posts in the Electronic Data Processing Discipline of
the field formations of the Central Board of Excise and Customs, Department
of Revenue, Ministry of Finance, commonly known as the Electronic Data
Processing, Discipline (Group 'C' Technical Posts) Recruitment Rules, 1992
notified on 3rd April, 1992. Therein the scales of pay, qualifications of
appointment, source of recruitment, etc. were shown as follows:
|S. No. |Designation of |Pay scale | |
| |post | | |
|1. |Data Entry |Rs.1150-25-1500 |This will be entry Grade |
| |Operator Grade | |for Higher Secondary |
| |'A' | |with |
| | | |knowledge of Data Entry |
| | | |work. |
| | | |Direct Recruitment. |
|2. |Data Entry |Rs.1350-30-1440-|This will be entry grade |
| |Operator Grade |40-1800-EB-50-22|for graduate with |
| |'B' |00 |knowledge of Data Entry |
| | | |work of promotional Grade |
| | | |for Data Entry Operator |
| | | |Grade 'A' failing which by|
| | | |transfer on deputation, |
| | | |and percentage by direct |
| | | |recruitment. |
|3. |Data Entry |Rs.1400-40-1800-|Promotional Grade from |
| |Operator Grade |EB-50-2300 |Data Entry Operator Grade |
| |'C' | |'B' failing which by |
| | | |transfer on |
| | | |deputation. |
|4. |Data Entry |Rs.1600-50-2300-|Promotional Grade from |
| |Operator Grade |EB-60-2660 |Data Entry Operator Grade |
| |'D' | |'C' failing which by |
| | | |transfer on |
| | | |deputation. |
|5. |Data Processing |Rs.1600-50-2300-|Degree of a recognized |
| |Assistant Grade |EB-60-2660 |University or equivalent |
| |'A' | |with Science, Mathematics,|
| | | |Economics, Commerce, |
| | | |Statistics. Direct |
| | | |recruitment. |
7. In the Department of Personnel and Training, Ministry of Personnel,
Public Grievances and Pensions, a Rule under proviso to Article 309 of the
Constitution was already existing for Non-Ministerial Group 'C' Posts,
namely, the Staff Selection Commission (Non-Ministerial, Group 'C' Posts of
Technical Assistant (Hollerith) and Puncher-cum-Verifier (Hollerith)
Recruitment Rules 1978. The aforesaid Rules, 1978 was superseded by - the
Staff Selection Commission (Electronic Data Processing Group 'C' Posts of
Data Entry Discipline) Recruitment Rules, 1996. It was notified on 10th
October, 1996. In the said Rules again similar scales of pay,
qualifications, method of recruitment, etc. were shown which are as
follows:
|S. No. |Designation of |Pay scale | |
| |post | | |
|1. |Data Entry |Rs.1150-25-1500 |This will be entry Grade |
| |Operator Grade | |for Higher Secondary |
| |'A' | |with |
| | | |knowledge of Data Entry |
| | | |work. |
| | | |Direct Recruitment. |
|2. |Data Entry |Rs.1350-30-1440-|This will be entry grade |
| |Operator Grade |40-1800-EB-50-22|for graduate with |
| |'B' |00 |knowledge of Data Entry |
| | | |work of promotional Grade |
| | | |for Data Entry Operator |
| | | |Grade 'A' with 6 years |
| | | |regular service failing |
| | | |which by transfer on |
| | | |deputation, and percentage|
| | | |by direct recruitment. |
|3. |Data Entry |Rs.1400-40-1800-|Promotional Grade from |
| |Operator Grade |EB-50-2300 |Data Entry Operator Grade |
| |'C' | |'B' with 3 years regular |
| | | |service failing which by |
| | | |transfer on |
| | | |deputation. |
|4. |Data Entry |Rs.1600-50-2300-|Promotional Grade from |
| |Operator Grade |EB-60-2660 |Data Entry Operator Grade |
| |'D' | |'C' failing which by |
| | | |transfer on |
| | | |deputation. |
|5. |Data Processing |Rs.1600-50-2300-|Degree of a recognized |
| |Assistant Grade |EB-60-2660 |University or equivalent |
| |'A' | |with Science, Mathematics,|
| | | |Economics, Commerce, |
| | | |Statistics. Direct |
| | | |recruitment. |
8. From the Office Memorandum and Rules, as noticed above, the following
facts emerge:
(i) In view of the recommendations of Fourth Central Pay Commission
(paragraph 11.45 of the Report), the Government of India constituted a
Committee to suggest the reorganisation of existing department of
Electronic Data Processing posts such as Data Entry Operator which were in
the scale of pay of Rs.950-1150.
(ii) By Office Memorandum dated 11th September, 1989, pursuant to the
aforesaid suggestions the Government of India decided to introduce pay
structure for Electronic Data Processing posts with separate nomenclatures
that is: (i)Data Entry Operator Grade 'A' - Rs.1150-1500 with entry Grade
for Higher Secondary with knowledge of Data Entry work; (ii) Data Entry
Operator Grade 'B' - is promotional post of Data Entry Operator Grade 'A',
similarly Data Entry Operator Grade 'C' is promotion post of Data Entry
Operator Grade 'B' and Data Entry Operator Grade 'D' is promotion post of
Data Entry Operator Grade 'C' and Data Entry Operator Grade 'E' is
promotional post of Data Entry Operator Grade 'D'.
For such promotion, the person is not only required to be qualified
but must fulfill experience condition in the lower grade for promotion to
the higher post.
9. The higher post of Data Entry Operator Grade 'B' in the scale of pay
of Rs.1350-2200 and higher posts of Data Entry Operator Grade 'C' and Data
Entry Operator Grade 'D' can be filled up by promotion on the
recommendation of Staff Selection Committee. The person having
qualification and experience cannot claim promotion to the higher post, his
turn of promotion comes when a vacancy arises or in case there is a cause
of action.
10. Cases before Central Administrative Tribunal
After rationalisation of pay scales of Electronic Data Processing
posts as Data Entry Operator, number of persons, who were working against
lower posts of Key-Punch Operator in the scale of pay of Rs.950-1500 and
redesignated as Data Entry Operator Grade 'A', claimed that they are
entitled for the scale of pay of Rs.1350-2200. Central Administrative
Tribunal Benches situated in different States, passed contradictory orders.
In many of the cases reliefs were granted by allowing the scale of pay of
Rs.1350-2200 to those who are designated as Data Entry Operator Grade 'A'
whereas some claims were rejected as well. Some of the examples are as
follows:
(i) Central Administrative Tribunal, Cuttack Bench, Orissa in OA
No.249/1991 had granted the pay scale of Rs.1350-2200 to Data Entry
Operator Grade 'A'. The SLP filed against the same was dismissed summarily
on 15th May, 1994.
(ii) Central Administrative Tribunal, Ahmedabad Bench, Gujarat in
Y.B.Vishnu Prasad & Ors. v. U.O.I. & Ors. by judgment dated 1st September,
1999 also granted prayer directing the authorities to pay the applicants
scale of pay of Rs.1350-2200.
(iii) Central Administrative Tribunal. Hyderabad Bench in OA No.957/1990 by
judgment dated 10th December, 1992 allowed the benefits in favour of the
employees-Data Entry Operators.
(iv) Identical relief was granted by the Central Administrative Tribunal,
Lucknow Bench.
(v) OA which was preferred before the Principal Bench of Central
Administrative Tribunal, New Delhi was, however, dismissed.
(vi) Many of the petitions against the aforesaid judgments by which Union
of India moved before the Supreme Court were dismissed in limine.
(vii)The Central Administrative Tribunal Tribunal, Jabalpur Bench in M.H.
Bag & Ors. Vs. UOI & Ors. (OA No.142 of 95) allowed similar benefits
referring the decisions of different Benchs of Central Administrative
Tribunal of different States.
11. The appellants -Union of India, Secretary, Department of Personnel &
Training, Ministry of Public Grievances and Pensions and another brought to
the notice of this Court the following judgments and order passed by the
different Benches Central Administrative Tribunal:
(i) Judgment dated 28.09.1999 passed by CAT Jabalpur Bench in
O.A.No.142/1995;
(ii) Judgment dated 01.10.2001 passed by CAT Lucknow Bench in
O.A.No.150/2001;
(iii)Judgment dated 27.04.2004 passed by CAT Mumbai Bench in
O.A.No.737/2002;
(iv) Judgment dated 19.12.2006 passed by CAT Madras Bench in O.A.No.352 to
354/2005.
12. The Central Administrative Tribunal, Madras Bench by judgment dated
7th November, 2008, however, dismissed the O.A.No.870 of 2007. The said
order was challenged before the High Court. The High Court of Judicature at
Madras by judgment dated 14th October, 2009, referring to the different
orders passed by the various Central Administrative Tribunal Benches
allowed the writ petition filed by the respondent-T.V.L.N. Mallikarjuna
Rao.
13. In view of the decisions passed by the different Benches of Central
Administrative Tribunal, some confusion appears to have taken place in the
Department of Central Government. By its Circular No.CGDA No.EDP
/113/II(PC) /vol.14 dated 4th January, 2006, the office of Controller
General of Defence Accounts intimated that the pay of the DEOs Grade A & B
has to be fixed from 1.1.86 or from the date of appointment whichever is
later and arrears are to be drawn accordingly. The said letter does not
show that such decision has been taken by the Union of India or under
proviso to Article 309 of the Constitution of India.
14. Case of respondents/applicants before the Central Administrative
Tribunal:
Respondent-T.V.L.N. Mallikarjuna Rao, pursuant to Key-Punch Operators
examination 1989, was appointed on 11th September, 1989 as Key-Punch
Operator. He was redesignated as Data Entry Operator Grade 'A' w.e.f. 16th
November, 1992. He submitted a representation on 11th March, 1994 for
seeking placement in the Data Entry Operator Grade 'B' on the basis of his
education qualification and the same was rejected by letter dated 25th
July, 1994 on the ground that the post of Data Entry Operator Grade 'B' in
Staff Selection Commission is a promotional post of Data Entry Operator
Grade 'A'. Merely, on account of higher educational qualification one could
not claim higher post.
15. Against the order of rejection dated 25th July, 1994, respondent-
T.V.L.N. Mallikarjuna Rao moved before the Central Administrative Tribunal.
The contention of the respondent in the said case was that he should be
given Data Entry Operator Grade 'B' right from his initial appointment as
he was Graduate on the date of applying for the post and that in view of
O.M. dated 11th September, 1989 Data Entry Operator Grade-B would be entry
grade for graduates. The case was registered before Central Administrative
Tribunal, Madras Bench as O.A. No.870 of 2007 which was dismissed on merit
by the Central Administrative Tribunal on 7th November, 2008. Against the
said judgment of the Central Administrative Tribunal, respondent.T.V.L.N.
Mallikarjuna Rao filed Writ Petition NO.3195 of 2009 before the High Court
of Judicature at Madras. The Division Bench of the High Court by the
impugned judgment dated 14th October, 2009 set aside the judgment of the
Central Administrative Tribunal and allowed the writ petition directing the
appellants to grant benefit of pay scale of Rs.1350-2200 w.e.f. the date of
initial appointment of the respondent along with all consequential benefits
in view of the decisions of the different Benches of the Central
Administrative Tribunal.
16. Respondents - S.D. Bhangale, S.H. Patil and R.P. Joshi were appointed
as Punch and Verifier Operators in the Ordnance Factory, under the Ministry
of Defence, Government of India. One of them was appointed on 20th
September, 1988 as Punch and Verifier Operator in the pay scale of Rs.950-
1500. After reorganization of Electronic Data Processing Posts, the
respondents were redesignated as Data Entry Operators Grade 'A'. On 10th
June, 1999, the respondents were promoted to the post of Data Entry
Operators Grade 'B' in the pay scale of Rs.4500-7000 w.e.f. 10th June,
1999. After about two years of their promotion, respondents-S.d. Bhangale
and others made representation to grant them pay scale of Rs.1350-2200 from
their initial date of appointment. However, having not been granted such
relief, the respondents filed O.A.Nos.231 and 240 of 2003 before the
Central Administrative Tribunal, Bombay Bench with prayer to extend
benefits of pay scale of Rs.1350-2200 from the date of their initial
appointment as Punch and Verifier Operators. On contest, the Central
Administrative Tribunal, Bombay Bench by its detailed common judgment and
order dated 23rd July, 2004 dismissed the original applications filed by
the respondents-S.D. Bhangale and others. However, the said order has been
set aside by the Division Bench of the High Court of Judicature at Bombay
by the impugned judgment dated 28th August, 2009 by referring to different
decisions rendered by different Benches of the Central Administrative
Tribunal, as affirmed by the judgment passed by the High Court.
17. Respondents - V. Ambi, Thirunavukkarasu, A. Selvaraj and R. Ravi,
were appointed in Heavy Alloy Penetrator Project (HAPP) under the Ministry
of Defence, Government of India as Planning Assistant on casual basis
w.e.f. 16th November, 1989, 25th August, 1988 and 20th September, 1989 in
the then pay scale of Rs.950-1500, later on their services were
regularized. At the time of their appointment in HAPP, it was a Joint
Venture project of Defence Research and Development Organization and in
1990 HAPP was transferred to Ordnance Factory Board and their services were
regularised. On 8th November, 1996, the Ministry of Defence re-designated
the Planning Assistant to Data Entry Operator Grade 'A' with higher pay
scale of Rs.1150-1500. The aforesaid respondents moved before the Central
Administrative Tribunal, Madras Bench in O.A.No.432 of 1997 seeking pay
scale of Rs.1600-2660 w.e.f. 11th September, 1989. The Central
Administrative Tribunal, Madras Bench dismissed the said original
application by order dated 22nd July, 1999. The respondents jointly filed
O.A.No.701 of 2009. By judgment dated 3rd September, 2010, Central
Administrative Tribunal in OA No.701 of 2009 passed certain directions
following the judgment of the High Court of Bombay in a similar matter. The
appellants were directed to grant pay scale of Rs. 1350-2200 to the
respondents. Being aggrieved, the appellants filed a writ petition being
W.P. No.6342 of 2011 before the High Court of Judicature at Madras. By the
impugned judgment dated 17th March, 2011 the Division Bench of the High
Court of Judicature at Madras dismissed the writ petition.
18. Respondent- Sunjay Gurvekar was appointed on 11th January, 1990 as
Puncher-cum-Verifier in the office of Staff Selection Commission,
Department of Personnel and Training, Ministry of Public Grievance and
Pensions in the pay scale of R.950-1500. He was redesignated as Data Entry
Operators Grade 'A'. He also moved before the Central Administrative
Tribunal, Bangalore Bench for similar relief. The Central Administrative
Tribunal by the order dated 12th March, 2010 allowed the said O.A.No.99 of
2007. On challenge made by the appellant-Union of India, Division Bench of
High Court of Karnataka, by the impugned judgment dated 22nd September,
2010 dismissed the writ petition.
19. Similar is the case of the respondents - Satyendra Prasad and others,
who were initially appointed against certain technical posts and were later
redesignated as Data Entry Operators Grade 'A'. They sought for similar
relief by filing O.A.No.1104 of 2002 before the Central Administrative
Tribunal, Patna Bench. The Central Administrative Tribunal, Patna Bench by
order dated 29th May, 2009 directed the appellants to pay the respondents
scale of Data Entry Operator Grade 'A' w.e.f. 1.1.1996 while mentioning
that arrears will be restricted to one year before the filing of O.A. The
said order was challenged by the appellant-Union of India before the Patna
High Court. A Division Bench of the Patna High Court, by the impugned
judgment dated 22nd February, 2012 dismissed the writ petition being
C.W.J.C. No. 17230 of 2009.
20. Learned counsel appearing on behalf of the appellants submitted that
the post of Data Entry Operator Grade 'B' with pay scale of Rs.1350-2200
is higher post and the respondents have no right to claim the higher pay
scale merely on the ground that they are Graduates and that they were
performing similar duties.
21. On the other hand, according to the respondents, in view of different
decisions rendered by the Central Administrative Tribunal, Madras Bench,
etc. they have been rightly allowed the pay scale of Rs.1350-2200 from the
due date.
22. It was further contended on behalf of the respondents that the
appellants having already implemented the orders of the various Benches of
the Central Administrative Tribunal as affirmed by the High Court, they
cannot discriminate between those who have already been granted the
benefits and the respondents herein. Reliance was placed on one another
judgment passed by the Central Administrative Tribunal as affirmed by the
High Court.
23. We have considered the rival contentions raised by the learned
counsel for the parties and gone through the material placed on record.
24. Prior to 1986 there were in existence two grades of operators viz.
Junior Key Punch Operators in the scale of Rs.260-400 and Senior Key Punch
Operators in the scale of Rs.350-560. The pay scales of all these posts was
revised to Rs.950-1500 and Rs.1200-2040 respectively w.e.f. 1.1.1986
pursuant to recommendation made by the Fourth Pay Commission. These posts
came to be re-designated as Data Entry Operator, Grade-A and Data Entry
Operator, Grade-B in the scale of Rs.1150-1500 and Rs.1350-2200
respectively pursuant to the Office Memorandum dated 11.9.1989 whereby the
Electronic Data Processing Posts have been reorganized.
25. With a view to consider different pay scale on the recommendations of
the Fourth Pay Commission, a Committee was constituted to suggest
reorganization of the existing Electronic Data Processing Posts. On the
recommendation, the Government of India vide Office Memorandum dated
11.9.1989 made the following restructure for Electronic Data Processing
Posts:
|S.No. |Designation of |Pay Scale |Qualification/Source of Entry |
| |the post Data | | |
| |Entry Operator | | |
|1 |Data Entry |1150-1500 |This will be entry grade for |
| |Operator Grade-A | |higher secondary with knowledge|
| | | |of Data Entry work. |
|2 |Data Entry |1350-2200 |This will be entry grade for |
| |Operator Grade-B | |graduates with knowledge of |
| | | |Data Entry work - Promotional |
| | | |grade for Data Entry Operator |
| | | |Grade-A. |
Subsequently, Rules under proviso to Article 309 of the Constitution of
India has been framed. From the aforesaid memorandum and Rules it is clear
that qualification for Data Entry Operator Grade-A is higher secondary
whereas the qualification for Data Entry Operator Grade-B is graduation and
it is a promotional post from Data Entry Operator Grade-A persons who have
six years of experience.
26. The classification of posts and determination of pay structure comes
within the exclusive domain of the Executive and the Tribunal cannot sit in
appeal over the wisdom of the Executive in prescribing certain pay
structure and grade in a particular service. There may be more grades than
one in a particular service.
27. The Government on consideration of the report submitted by the
Committee, issued Office Memorandum dated 11.9.1989 prescribing therein
different pay scales and different grades of Data Entry Operators besides
the mode and manner of recruitment to and qualifications for each entry
grade post as well as eligibility and experience for promotional grades.
The Court or the Tribunal, in our opinion, would be exceeding its power of
judicial review if it sits in appeal over the decision of the Executive in
the matter of prescribing the pay structure unless it is shown to be in
violation of Articles 14 and 16 of the Constitution of India.
Difference in pay scales based on educational qualifications, nature of
job, responsibility, accountability, qualification, experience and manner
of recruitment does not violate Article 14 of the Constitution of India.
28. Before the CAT, Bombay Bench a chart dated 8.1.1999 was produced
wherein certain additional duties were listed which were to be performed by
Data Entry Operators Grade-B over and above the duties assigned/prescribed
for Data Entry Operators Grade-A were listed. Considering the educational
qualifications prescribed under the Office Memorandum dated 11.9.1989 and
the rules for appointment to the posts of Data Entry Operators, Grade-B and
the order assigning duties, we are of the view that classification of Data
Entry Operators in different grades, does not violate any right of equality
guaranteed by Articles 14 and 16 of the Constitution nor does it violate
the constitutional protection against hostile or arbitrary discrimination.
Therefore, no exception can be taken to the difference in the pay
structures of entry grade of Data Entry Operators and the next higher
grades. CAT Benches in most of the impugned orders had failed to notice
the background of rationalization of pay scales of Electronic Data
Processing Posts. In these cases, both the Tribunals and the High Court
failed to notice that before rationalization of the posts, i.e. prior to
1986 there were in existence two grade of operators, Junior Key Punch
Operators in the scale of Rs.260-400 and Senior Key Punch Operators in the
scale of Rs.350-560. The pay scales of these posts were revised to 950-1500
and Rs.1200-2040 respectively w.e.f. 1.1.1986. In view of reorganization
of Electronic Data Processing posts the Key Punch Operators and other posts
which had lower pay scale of Rs.260-400 was revised to Rs.950-1500. Their
posts were re-designated as Data Entry Operators Grade-A with benefit of
other revision of the scale of Rs.1150-1500. In fact double benefit was
granted to them w.e.f. 1.1.1986 i.e. one revision in the scale of Rs.950-
1500 as they were entitled as per recommendation of Pay Revision Committee
and the other revision w.e.f. same date i.e. 1.1.1986 in the scale of
Rs.1150-1500 on the recommendation of the Committee set up by the
Department of Electronics which was accepted by the Government of India
vide Office Memorandum dated 11.9.1989. It is only those Senior Key Punch
Operators who were in the higher scale of Rs.350-560 having qualification
of graduate and whose scale was revised to 1200-2040 w.e.f. 1.1.1986.
Irrespective of that different Benches of the CAT without discussing the
nature of job, responsibility, accountability and status and rank of the
one or other posts of different Data Entry Operators i.e. Grade-A or Grade-
B held that they were performing similar duties and are hence entitled for
equal pay and eligible for Rs.1350-2200 on the principle of equal pay for
equal work. Both the Tribunal and the High Court also failed to notice that
the Data Entry Operator Grade-B in the pay scale of Rs.1350-2200 is a
promotional grade and only those who have six years of experience are
eligible for such promotion. The promotional grade and entry grade cannot
have the same pay scale and in absence of declaration that rationalization
of pay scale of Electronic Data Processing posts made by Office Memorandum
dated 11.9.1979 is illegal, no such benefit could have been granted.
29. Both the Tribunal and the High Court also failed to notice the
statutory rules framed under proviso to Article 309 of the Constitution of
India issued by the order of the President of India vide notification dated
3rd April, 1992 and notification dated 10.10.1996 from Department of
Personnel and Training, Ministry of Personnel, P.G. and Pensions.
Both the Tribunal and the High Court also erred in ignoring the law laid
down by this Court in plethora of judgments that the "principle of equal
pay for equal work" is not always applicable even if duties and functions
are of similar nature.
In Mewa Ram Kanojia v. All India Institute of Medical Sciences and others,
(1989) 2 SCC 235 this Court has inter alia held as follows:-
"5. While considering the question of application of principle of "Equal
pay for equal work" it has to be borne in mind that it is open to the State
to classify employees on the basis of qualifications, duties and
responsibilities of the posts concerned. If the classification has
reasonable nexus with the objective sought to be achieved, efficiency in
the administration, the State would be justified in prescribing different
pay scale but if the classification does not stand the test of reasonable
nexus and the classification is founded on unreal, and unreasonable basis
it would be violative of Articles 14 and 16 of the Constitution. Equality
must be among the equals. Unequal cannot claim equality.
7. Even assuming that the petitioner performs similar duties and functions
as those performed by an Audiologist, it is not sufficient to uphold his
claim for equal pay. As already observed, in judging the equality of work
for the purposes of equal pay, regard must be had not only to the duties
and functions but also to the educational qualifications, qualitative
difference and the measures of responsibility prescribed for the respective
posts. Even if the duties and functions are of similar nature but if the
educational qualifications prescribed for the two posts are different and
there is difference in measure of responsibilities, the principle of "Equal
pay for equal work" would not apply..........."
30. It was further re-affirmed in a three-Judge Bench judgment of this
Court in Shyam Babu Verma & Others v. Union of India & Others, (1994) 2 SCC
521 wherein the Court held:
9...............The nature of work may be more or less the same but scale
of pay may vary based on academic qualification or experience which
justifies classification. The principle of 'equal pay for equal work'
should not be applied in a mechanical or casual manner. Classification made
by a body of experts after full study and analysis of the work should not
be disturbed except for strong reasons which indicate the classification
made to be unreasonable. Inequality of the men in different groups excludes
applicability of the principle of 'equal pay for equal work' to them. The
principle of 'equal pay for equal work' has been examined in State of M.P.
v. Pramod Bhartiya1 by this Court. Before any direction is issued by the
Court, the claimants have to establish that there was no reasonable basis
to treat them separately in matters of payment of wages or salary. Then
only it can be held that there has been a discrimination, within the
meaning of Article 14 of the Constitution."
31. In fact the case of Shyam Babu Verma was similar to the present case.
In the said case the Third Pay Commission placed Pharmacists Grade-B into
two categories and prescribing two scale of pay - (i) For fully qualified
pharmacist who possess the qualification mentioned under the Act and (ii)
For unqualified Pharmacists, those covered by clause (d) of Section 31 of
the Act. The said recommendation was given effect from 1.1.1973. In the
said case it was urged on behalf of the petitioners that based on the
principle of equal pay for equal
work they were entitled to the pay scale of Rs.330-550 which was the scale
of pay to the other Pharmacists. In the said case after making the above
said observation this Court further held:
"10. In the facts of present case there is no scope for applying the
principle of 'equal pay for equal work' when the petitioners belong to a
separate category of Pharmacists with reference to the qualifications
prescribed under the Act. According to us, there is no element of
arbitrariness in the decision of the respondents to implement two scales of
pay for two categories of Pharmacists Grade-B. It does not violate any of
the provisions of the Constitution calling for interference by this Court.
11. Although we have held that the petitioners were entitled only to the
pay scale of Rs 330-480 in terms of the recommendations of the Third Pay
Commission w.e.f. January 1, 1973 and only after the period of 10 years,
they became entitled to the pay scale of Rs 330-560 but as they have
received the scale of Rs 330-560 since 1973 due to no fault of theirs and
that scale is being reduced in the year 1984 with effect from January 1,
1973, it shall only be just and proper not to recover any excess amount
which has already been paid to them. Accordingly, we direct that no steps
should be taken to recover or to adjust any excess amount paid to the
petitioners due to [pic]the fault of the respondents, the petitioners being
in no way responsible for the same."
32. In view of the findings recorded above we hold that Data Entry
Operators Grade-A are not entitled for Scale of pay of Rs.1350-2200 w.e.f.
1.1.1986 or thereafter merely on the basis of their qualifications or for
the fact that they have completed their period of requisite service. We
further hold that any decision rendered by any Tribunal or any High Court
contrary to our decision is wrong. Further in view of the reasons and
findings recorded above while we hold that the respondents are not entitled
to the benefit as they sought for before the Tribunal or the High Court,
all the impugned orders passed by the CAT Benches and the High Courts in
favour of the respondents being illegal are set aside.
33. The appeals are allowed. No costs.
.................................................J.
(SUDHANSU JYOTI MUKHOPADHAYA)
.................................................J.
(PRAFULLA C. PANT)
NEW DELHI;
DECEMBER 09, 2014.