HUKAM CHAND GUPTA Vs DIRECTOR GENERAL, I.C.A.R. .
Bench: SURINDER SINGH NIJJAR,H.L. GOKHALE
Case number: C.A. No.-003580-003580 / 2009
Diary number: 28582 / 2008
Advocates: PETITIONER-IN-PERSON Vs
B. SUNITA RAO
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REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3580 OF 2009
Hukum Chand Gupta ...Appellant
VERSUS
Director General, ICAR & ORS. ...Respondent
J U D G M E N T
SURINDER SINGH NIJJAR,J.
1. On 25th September, 2012, we passed the following
order:
“Having heard the appellant-in-person and the counsel for the respondent, we find no merit in the appeal and the same is hereby dismissed. The detailed reasons with conclusions shall follow.”
2. Here are the reasons.
3. This appeal is directed against the judgment of the
Division Bench of the High Court of Punjab and
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Haryana at Chandigarh in Civil Writ Petition No.9595-
CAT of 2004 decided on 8th August, 2008.
4. The appellant was initially appointed as a Laboratory
Assistant in Group D on 29th December, 1961 in the
National Dairy Research Institute (hereinafter referred
to as ‘NDRI’). On 13th January, 1966, he was
promoted as a Lower Division Clerk (Junior Clerk) after
qualifying limited departmental competitive
examination. He was further promoted on 10th May,
1973 as a Senior Clerk, again after qualifying limited
departmental competitive examination. At that stage,
his pay scale was Rs.1200-2040/-. Subsequently, on
15th June, 1988, he was promoted to the post of
Superintendent in the pay scale of Rs.1640-2900/- after
passing the departmental examination. On 17th March,
1994, he was promoted as Assistant Administrative
Officer on the basis of seniority-cum-fitness. The
respondent revised the pay scale of Assistants on 17th
June, 1995 from Rs.1400-2600 to Rs.1640-2900/-
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w.e.f. 1st January, 1986. However, the pay scale of
Superintendent was not revised.
5. At that stage, the appellant submitted a representation
on 24th October, 1995 requesting that his pay scale
may be revised on the ground that in Headquarters of
Indian Council of Agricultural Research (ICAR), the
post of Superintendent is a promotional post from that
of Assistant which carries the pay scale of Rs.1640-
2900/-. The representation not having been decided,
the appellant filed OA No.567-HR-96 before the
Chandigarh Bench of Central Administrative Tribunal
(hereinafter referred to as ‘the Tribunal’). By order
dated 20th May, 1997 the Tribunal disposed of OA with
the following observations :-
“In this application, the agitation is for revision of pay scale of the applicant who is Superintendent in the scale of Rs.1640-2900/- to that of Rs.2000- 3500/- on the ground that the duties and responsibilities of Superintendent are much higher than the Assistants working at Headquarters office of ICAR and he should be given the higher pay scale. As per the recent judgment of the Hon’ble Supreme Court in the case of UOI and Anr. vs.
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P.V.Hariharan and Anr. O.A.No.7127 of 1993 arising out of OA 391/91, has precluded the Tribunals from adjudicating the matters of parity of pay or pay scales in the Government Department unless some discrimination is brought to the notice of the Court. This is a matter regarding parity of pay scales between two sets of posts, therefore, it is squarely covered by the directions of Hon’ble Supreme Court. In view thereof, this matter cannot be adjudicated by this Tribunal.
2. However, it was also brought to our notice that the matter is engaging the attention of the authority concerned and the representation filed by the applicant on 24.10.1995 (A-3) is under active consideration.
3. In view thereof, the OA is disposed of with a direction that respondents shall expedite the decision in the matter. OA disposed of accordingly.”
A perusal of the aforesaid shows that the Tribunal
declined to entertain the claim of the appellant by relying
upon the judgment rendered by this Court in Union of
India Vs. P.V.Hariharan & Anr. 1 The Tribunal, however,
directed that the respondent shall expedite the decision
on the representation submitted by the appellant.
1 (1997) 3 SCC 568
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Subsequently, NDRI sent a copy of the memorandum to
the appellant on 2nd April, 1998 which reads as under:
MEMORANDUM
“With reference to the Court Case filed by Sh.Hukum Chand Gupta Asstt. Administrative Officer, NDRI, Karnal, under OA No.567/HR/96 in the Central Administrative Tribunal, Chandigarh, regarding upgradation of the post of Superintendent in the higher scale of that the proposals based upon the recommendations of Dr. Raman Committee involving upgradation of posts including the Superintendent/Superintendent (A &A) and Sr. Stenographer in the existing pay scale of RS.1640-2900 (revised to Rs.5500-175-9000) to the next higher grades, the same have not yet been concurred to by the Ministry of Finance. Deptt. of Expenditure. Thus the decision in the matter is pending.
This issue with reference to the ICAR letter No.9-16/96 Law dated the 11-March-1998.
Sd/-
(J.K.Kewalramani)
Senior Administrative Officer Admn.)”
6. On 4th August, 2000, the appellant was further
informed that ICAR, on the basis of the
recommendation of the Cadre Review Committee, had
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directed for upgradation of seven posts of
Superintendents to the post of AAO, by letter dated
17th December, 1998. Therefore, no further decision
was required to be taken by the respondent on the
representation of the appellant.
7. It appears that on 12th December, 2000, the Screening
Committee of respondent institute recommended the
case of Shri J.I.P. Madan for financial upgradation in
the scale of Rs.8000-13500/-. The aforesaid decision
was taken on the basis of the instructions of the ICAR
by which the post of Superintendent was merged with
the post of Assistant as the post of Superintendent
was treated as ‘dying cadre’. In the meantime, the
appellant reached the age of superannuation on 31st
July, 2001 and duly retired from service. On 17th April,
2002, Shri J.I.P. Madan was granted second financial
upgradation w.e.f. 8th February, 2001 in the pay scale
of Rs.8000-13500. At this stage, the appellant again
moved the Tribunal through OA No.299/HR/2003.
The appellant claimed that Shri J.I.P. Madan being
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junior to him cannot be put in a higher pay scale. The
OA was dismissed on 2nd December, 2003.
8. By a detailed order, the Tribunal rejected both the
claims. It was observed that the post at Headquarters
cannot be compared with the post at Institutional level
as both are governed by different sets of Service Rules.
The second prayer with regard to the higher pay scale
given to Shri J.I.P. Madan was rejected on the ground
that he had been given the benefit of second
upgradation in pay since he had earned only one
promotion throughout his professional career.
9. Aggrieved by the aforesaid, the appellant filed a writ
petition C.W.P. No. 9595 CAT of 2004 before the High
Court. The writ petition has also been dismissed by
judgment dated 8th August, 2008. This judgment is
impugned in the present appeal.
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10. We have heard the appellant, in person, and Mrs.
Sunita Rao, on behalf of the respondents.
11. We see no reason to differ with the conclusion
reached by the High Court. It is a matter of record
that the claim of the appellant had been negated way
back in 1997, when the Tribunal rejected the claim.
The aforesaid order of the Tribunal was not challenged
by the appellant. However, leaving aside the question
of laches, we are of the opinion that the appellant has
failed to establish that the action of the respondents is
either discriminatory or beyond the purview of the
rules.
12. According to the appellant, the decisions rendered
by the Tribunal as well as the High Court are based on
a misconception. According to him, there can be no
distinction in the pay scales of the posts in
Headquarters on one hand and at institutional level on
the other. He claims that the persons holding identical
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posts performing identical and similar duties under
the same employer cannot be treated differently in the
matter of pay and allowances, depending on whether
the employees are posted at Headquarters or at the
Institution level. This, according to the appellant,
violates Article 14, 16 and 39D of the Constitution of
India.
13. Mrs. Sunita Rao, learned counsel appearing for the
respondent has submitted that Shri J.I.P. Madan was
appointed as a Lab Assistant w.e.f. 3rd May, 1976 at
NDRI. He was directly recruited thereafter
on 9th February, 1977 as an Assistant in the pay scale
of Rs.425-700. This was not a case of promotion from
the post of Lab Assistant, a technical post to the post
of Assistant which is in the general cadre. She,
however, accepts that Shri Madan was further
promoted as Superintendent on 24th August, 1990 in
the pay scale of Rs.1640-2900 revised to Rs.5500-
9000 with effect from 1st January, 1996. He was
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further promoted to the post of AAO on 1st November,
1996 in the pay scale of Rs.6500-10500. She, however,
points out that there was a merger of the post of
Superintendent and Assistant in 1998. Therefore, the
post of Superintendent was declared a dying cadre.
Assured Career Progression Scheme (hereinafter
referred to as ‘ACP Scheme’) was introduced in 1999.
Some institutes had raised a point of doubt as to
whether the promotion of Assistant to Superintendent
may be ignored in terms of DOPT’s clarification vide
O.M. dated 10th February, 2000. Reference was,
therefore, made to the DOPT for the necessary
clarification. The clarification given by the DOPT was
communicated to the respondent institute by letter
dated 1st March, 2002. Learned counsel brought to
our notice the relevant extract of the aforesaid letter,
which is as under : -
“In the given facts, the post of Assistant and Superintendent have been brought at par as incumbents of both are eligible for promotion directly to the grade of AAO and Assistant is no longer the feeder grades for
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Superintendent. Since, financial upgradation under AGP schemes are to be allowed as per the hierarchy available as on 9.8.1999, the promotion earned to the grade of Superintendent prior to 9.8.99 may have to be ignored in terms of clarification to point of doubt No.1 in O.M. dated 10.2.2002.”
14.According to the learned counsel, the promotion of
Shri Madan from the post of Assistant to the post of
Superintendent had to be ignored on the basis of the
above clarification. Consequently, he had been given
the second upgradation under the ACP on 26th March,
2000.
15.In our opinion, the explanation given by Mrs. Sunita
Rao does not leave any room for doubt that the claim
made by the appellant is wholly misconceived. There is
no comparison between the appellant and Shri J.I.P.
Madan. The appellant had duly earned promotion in
his cadre from the lowest rank to the higher rank.
Having joined in Group D, he retired on the post of
AAO. On the other hand, Shri J.I.P. Madan had been
working in the same pay scale till his promotion on the
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post of AAO. Therefore, he was held entitled to the
second upgradation after 24 years of service. He had
joined as an Assistant by Direct Recruitment and
promoted on 24th August 1990 as a Superintendent.
After the merger of the post of Assistant with the
Superintendent, the earlier promotion of Shri Madan
was nullified, as Assistant was no longer a feeder post
for the promotion on the post of Superintendent. Thus,
a financial upgradation, in view of ACP Scheme, was
granted to him since he had no opportunity for the
second promotion.
16.The Assured Career Progression Scheme for the
civilian employees was introduced on the
recommendations of the Vth Central Pay Commission.
It was introduced with a view to provide a ‘Safety Net’
to deal with problems of genuine stagnation and
hardship faced by the employees due to lack of
adequate promotional avenues. Under this scheme, it
was decided to grant two financial upgradations on
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completion of 12 years and 24 years of regular
service respectively. It was further provided that
isolated posts in Group A, B, C and D categories which
have no promotional avenues shall also qualify for
similar benefits. Grant of financial upgradations under
the ACP Scheme was, however, made subject to the
conditions mentioned in Annexure-I of the Office
Memorandum No.35034/1/97-Estt(D) dated
9th August, 1999. The conditions in Annexure-I
indicate that ACP Scheme envisages only a placement
in the higher pay-scale/grant of financial benefits
(through financial upgradation). This is given to the
Government servant concerned, on personal basis
only. It neither amounts to functional/regular
promotion nor requires creation of new posts for the
purpose. The aforesaid clarification makes it
abundantly clear that the financial upgradation was
granted to Shri Madan strictly inconformity with the
aforesaid scheme. Therefore, the objections raised by
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the appellant were without any basis and wholly
misconceived.
17.We may notice here that the provisions contained in
ACP Scheme are inconsonance with the observations
made by this Court in Council of Scientific and
Industrial Research & Anr. Vs. K.G.S. Bhatt & Anr. 2
in the following words:
“It is often said and indeed, adroitly, an organisation public or private does not “hire a hand” but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See Principles of Personnel Management, Flipo Edwin B., 4th Edn., p. 246) Every management must provide realistic opportunities for promising employees to move upward. “The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of
2 (1989) 4 SCC 635
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personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors.” (See Personnel Management, Dr. Udai Pareek, p. 277) There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a
system of promotions. (See Management of Personnel in Indian Enterprises, Prof. N.N. Chatterjee, Ch. 12, p. 128)”
18.In the case of State of Tripura & Ors. Vs. K.K. Roy ,3
this Court again observed that “it is not disputed that
the other States in India/Union of India having regard
to the recommendations made in this behalf by the
Pay Commission introduced the Scheme of Assured
Career Promotion in terms whereof the incumbent of a
post if not promoted within a period of 12 years is
granted one higher scale of pay and another upon
completion of 24 years if in the meanwhile he had not
been promoted despite existence of promotional
avenues.”
3 (2004) 9 SCC 65
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19. As noticed earlier, the ACP Scheme was introduced
in the ICAR by making the necessary provision in the
statutory Service Rules. Admittedly, Shri J.I.P. Madan
has been given the benefit under the ACP Scheme.
Therefore, the decision taken by the respondent was
within the purview of the Service Rules and can not be
said to be arbitrary. That being so, the claim made by
the appellant is clearly misconceived.
20. We are also not inclined to accept the submission of
the appellant that there can be no distinction in the
pay scales between the employees working at
Headquarters and the employees working at the
institutional level. It is a matter of record that the
employees working at Headquarters are governed by a
completely different set of rules. Even the hierarchy of
the posts and the channels of promotion are different.
Also, merely because any two posts at the
Headquarters and the institutional level have the same
nomenclature, would not necessarily require that the
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pay scales on the two posts should also be the same.
In our opinion, the prescription of two different pay
scales would not violate the principle of equal pay for
equal work. Such action would not be arbitrary or
violate Articles 14, 16 and 39D of the Constitution of
India. It is for the employer to categorize the posts and
to prescribe the duties of each post. There can not be
any straitjacket formula for holding that two posts
having the same nomenclature would have to be given
the same pay scale. Prescription of pay scales on
particular posts is a very complex exercise. It requires
assessment of the nature and quality of the duties
performed and the responsibilities shouldered by the
incumbents on different posts. Even though, the two
posts may be referred to by the same name, it would
not lead to the necessary inference that the posts are
identical in every manner. These are matters to be
assessed by expert bodies like the employer or the Pay
Commission. Neither the Central Administrative
Tribunal nor a Writ Court would normally venture to
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substitute its own opinion for the opinions rendered by
the experts. The Tribunal or the Writ Court would
lack the necessary expertise undertake the complex
exercise of equation of posts or the pay scales.
20-A. In expressing the aforesaid opinion, we are
fortified by the observations made by this Court in State
of Punjab Vs. Surjit Singh .4 In this case, upon review of
a large number of judicial precedents relating to the
principle of ‘equal pay for equal work’, this Court
observed as follows:
“19…Undoubtedly, the doctrine of ‘equal pay for equal work’ is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of ‘equal pay for equal work’ has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes 4 (2009) 9 SCC 514
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of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation…..A mere nomenclature designating a person as say a carpenter or a craftsman is not enough to come to the conclusion that he is doing the same work as another carpenter or craftsman in regular service. The quality of work which is produced may be different and even the nature of work assigned may be different. It is not just a comparison of physical activity. The application of the principle of ‘equal pay for equal work’ requires consideration of various dimensions of a given job. The accuracy required and the dexterity that the job may entail may differ from job to job. It cannot be judged by the mere volume of work. There may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere. Normally a party claiming equal pay for equal work should be required to raise a dispute in this regard. In any event, the party who claims equal pay for equal work has to make necessary averments and prove that all things are equal. Thus, before any direction can be issued by a court, the court must first see that there are necessary averments and there is a proof.”
(Emphasis supplied)
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21.In our opinion, the aforesaid observations would be a
complete answer to all the submissions made by the
appellant.
22. For the aforesaid reasons, we see no merit in this
appeal and the same is dismissed.
.………………….….….J. [Surinder Singh Nijjar]
………………………….J. [H.L.Gokhale]
New Delhi; September 25, 2012.
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