vil Appeal No 6 of 1988
From the Judgment and Order dated 1731987 of the Calcutta High Court in TA No S 16 of 1986
DN Diwedi AK Srivastava P Parmeswaran and CV Subba Rao for the Appellants
PG NO 756 PPRao and Amlan Ghosh for the Respondents
The Judgment of the Court was delivered by DUTTJ
This appeal by special leave preferred by the Union of India and Others is directed against the judgment of the Central Administrative Tribunal Calcutta Bench Calcutta whereby the Tribunal set aside the Award of the Board of Arbitrators and directed the appellants to accord the benefit of the scale of pay of Rs 550 900 to the Scientific Assistants working in the Botanical Survey of Indian with effect from January 11973 with all consequential reliefs
Before January l 1973 the scale of pay of the Scientific Assistants in the Botanical Survey of India was Rs2 10 425
The Third Central Pay Commission hereinafter referred to as the Pay Commission  made certain recommendations with respect to the Scientific Assistants
Clause i of paragraph 41 of the Report of the Pay Commission reads as follows 41i
In our view below the gazetted staff there are at least two distinguishable levels of scientific work which require graduates or post graduates
The higher grade would require a post graduate education and call for some degree of originality and capacity for independent work
Such scientific assistants shouldin course of time be able carry out independent investigations of the type conducted by scientific officers
The lower grade could be adequately manned by the good science graduates
The work at this level would be mostly standardised and conducted under the guidance of gazetted officers
Scientific Assistants in this grade should have reasonable expectations of moving to the higher grade
Thus a structure of two grades instead of a single integrated grade would serve the purpose of paying for the jobs at rates appropriate to the responsibilities and at the same time provide an incentive to good performance
 The Pay Commission recommended four levels of pay for the Scientific Assistants under Table XI
Level I and Level II under Table XI with which we are concerned are extracted below PG NO 757 TABLE XI Existing Proposed Qualification for scale Rs scale Rs Level I 550 900 MScFirst Class
Honours or Diploma in EngineeringSecond Class B Sc
with 3 years experience
Level II 425 700 Second Class B Sc
Honours or B Sc
with not less than 55 of marks in aggregate or Diploma in Engineers
The respondents Nos 1 to 8 who are working in the Office of the Botanical Survey of India as Scientific Assistants claim that they should be given the pay scale of Level l that is Rs550 900 as recommended by the Pay Commission
The demand of the respondents was considered by a Committee constituted by the Office Council of the Joint Consultative Machinery
The Committee which was headed by Dr AS Rao came to the conclusion that the posts of Scientific Assistants in the Botanical Survey of India should be allocated the pay scale of Rs550 900 in terms of the recommendation of the Third Pay Commission
As the Government did not agree to the conclusion of the AS Rao Committee the matter was referred to a Board of Arbitrators on July 171980
The terms of reference to the Board of Arbitrators was as follows Whether the post of Scientific Assistant of the Botanical Survey of India should be allocated the revised scale of Rs550 900 in terms of 3rd Pay Commission s recommendations effective from l l1973
 The Board of Arbitrators made the following Award All the Scientific Assistants who are continuing as Scientific Assistants since 111973 and who possess the prescribed qualification for Level I ie MScFirst Class BScHonsSecond Class BSc
with 3 years experience PG NO 758 shall be placed in the scale of Rs550 900 with immediate effect ie the date of this Award and shall be deemed to he automatically absorbed in the grade of Senior Scientific Assistants irrespective of the fact whether there are vacancies in the grade or not
Government is further directed to frame proper Recruitment Rules for the posts of Senior Scientific Assistant Level I and Scientific Assistant Level II at the earliest in accordance with the recommendations of the Third Pay Commission after taking into consideration the qualifications prescribed for both levels so that in future the manning of the majority of the posts in these grades is by direct recruitment and rest by promotion form the next lower level Feeling aggrieved by the Award of the Board of Arbitrators the respondents filed a writ petition before the Calcutta High Court which was however transferred to the Tribunal under the provision of section 29 of the 
The Tribunal came to the finding that the Board of Arbitrators had exceeded its jurisdiction in travelling beyond the terms of reference
Accordingly the Tribunal set aside the Award allowed the writ petition and directed the appellants to accord the benefit of the scale of pay of Rs550 900 to the Scientific Assistants working in the Botanical Survey of India in terms of the recommendation of the Pay Commission with effect from January l1973
Hence this appeal by special leave
The first question that falls for consideration is whether the Board of Arbitrators had exceeded its jurisdiction in going beyond the terms of reference
We have already extracted above the terms of reference under which the Board of Arbitrators was required to give its finding as to whether the revised scale of pay of Rs550 900 should be allocated to the post of Scientific Assistant of the Botanical Survey India
In other words the Board was to consider whether the Scientific Assistants of the Botanical Survey of India were entitled to the revised scale of pay of Rs550 900
The terms of reference are very clear and specific
Under the terms of reference there was no scope for prescribing two levels of scale of pay and the minimum qualifications for each level as has been done by the Pay Commission
There was also no scope for directing the Government to frame proper Recruitment Rules for the posts PG NO 759 of Senior Scientific Assistants Level I and Scientific Assistants Level II It is therefore apparent that in making the Award the Board of Arbitrators has acted beyond the terms of reference
There can be no doubt that when an Arbitrator acts beyond the terms of reference the Award is illegal and not binding upon the parties
The Tribunal has in our opinion rightly come to the finding that the Board of Arbitrators did not have any authority to go beyond the terms of reference and that the Award made by the Board cannot lawfully bind the staff side including the respondents Nos
1 to 8
The Tribunal was therefore justified in setting aside the Award
Now the question is whether the Scientific Assistants of the Botanical Survey of India are entitled to the revised scale of pay of Rs550 900 with effect from January 1 1973
It is not disputed that the post of Scientific Assistants in the Botanical Survey of India has been allocated the pay scale of Rs425 700 which is the pay scale recommended by the Pay Commission for the post of Scientific Assistants Level II
Clause i of paragraph 41 of the Report of the Pay Commission shows that the two levels have been suggested on the basis of nature of scientific work and the qualifications required therefore
According to the Pay Commission the higher grade that is Level I would require a post graduate education and call for some degree of originality and capacity for independent work
Such Scientific Assistants should in course of time be able to carry out independent investigations of the type conducted by scientific officers
So far as the nature of work under Level II is concerned the Pay Commission took the view that the work at this level would be mostly standardised and conducted under the guidance of gazetted officers and accordingly this level could be adequately manned by good science graduates
before dividing the grade of Scientific Assistants into two levels it is necessary to consider the nature of work performed by the Scientific Assistants
In other words the two levels as recommended by the Pay Commission can he brought into existence if the nature of work which is being performed by the Scientific Assistants of the Botanical Survey of India calls for some degree of originality and carrying out of independent work and investigations
In this connection
we may refer to paragraph 44 of the Report which reads as follows 44
Posts in all the organisations which are now in the scales mentioned in Table XI should be replaced by the substitutes which we have indicated against each
In case PG NO 760 the qualifications prescribed at present for any of the posts do not conform to those which we have indicated in that paragraph then the position should be reviewed where a higher qualification has been prescribed and if the work a content of the post justifies its being placed in the higher level it should be upgraded to that level
Otherwise the qualification requirement should be commensurately lowered for the future recruits
It is not disputed that the Pay Commission generally considered the cases of the Scientific Assistants
Accordingly the Pay Commission observed t4at before dividing the grade of Scientific Assistants into different levels the Job content of the post should be taken into consideration
It is not disputed that the case of the Scientific Assistants of Botanical Survey of India has not been specifically considered by the Pay Commission
If upon such consideration the Pay Commission had recommended the division of the posts of Scientific Assistants into Level I and Level II there would not have been any difficulty in giving effect to the same
It appears to us that the guiding factor for such division as recommended by the Pay Commission is the job content of the post for Scientific Assistant
Before directing the appellants to accord the benefit of the scale of pay of Rs550 900 to the Scientific Assistants of the Botanical Survey of India the Tribunal has taken into consideration the duties performed by them
The duties of Scientific Assistants are to assist in scientific research prepare notes after consultation with literature identification and cataloguing of flora and studying them in their various aspects In the field as well as in the Herbarium and the laboratory
 It has been found by the Tribunal that the Scientific Assistants of the Botanical Survey of India are not expected to exhibit any originality or capacity for doing any independent work and that the job contents of the existing Scientific Assistants are similar to those of Level II Scientific Assistants recommended by the Pay Commission
The Tribunal has also noticed one very significant fact that one Shri MK Deka a non matric has been posted as an Orchidariam Keeper in the scale of pay of Rs 550 900
Be that as it may as the job content does not require the qualifications as prescribed by the Commission for the Level I Scientific Assistants it will not be prudent to divide the post of Scientific Assistant into Level II
At the same time the existing Scientific Assistants should not be deprived of the pay scale of Rs550 900
PG NO 761 In the circumstances we are of the view that the Tribunal was perfectly justified in directing allocation of the revised pay scale of Rs550 900 to the existing Scientific Assistants of the Botanical Survey of India
We however make it clear that the appellants may give effect to the recommendations of the Pay Commission with regard to future recruitment s after framing rules in that regard
But so far as the existing Scientific Assistants are concerned we uphold the judgment of the Tribunal
For the reasons aforesaid this appeal is dismissed
There will however be no order as to costs
RSS Appeal dismissed


Summary:
Orissa Estates Abolition Act 1951 was enacted to abolish all the rights in the land of intermediaries between the raiyats and the State of Orissa by whatever name known and for vesting the same in the State
Section 3 authorises the State Government to declare by a notification any estate specified therein to have passed to and become vested in the same State ie the intermediary concerned is divested of the notified interests and becomes entitled to compensation
By an amendment section 3 A was included in the Act permitting the State Government to issue a single notification in respect of a class or classes of intermediaries in the whole or a part of the State
By a further amendment in 1963 Chapter Il A was inserted in the Act making special provisions for public trusts
Clause e of s13 A described trust estate
provisions were made in Chapter II A for entertaining claims and determining the nature of the estates claimed to be trust estates and announcing the decision by notification
The effect of such a determination was
as mentioned in section 13  to save the estate from vesting under a notification issued under section 3 or 3 A A notification under section 3 of the Act was issued in respect of the estate of Lord Jagannath on 27 4 1963 and on the same date another notification under section 13 C Chapter lI A followed declaring the estate as trust estate
The consequence was the diety was not divested of the estate
In 1970 Chapter Il A was repealed
By insertion of clause oo in section 2 in 1974 the said estate continued to be trust estate On 1831974 a notification under section 3 A was issued declaring the estate of the diety to have vested in the State
A writ petition was filed in the High Court challenging the validity of the said notification which was dismissed
PG NO 732 PG NO 733 In the appeal to this Court on behalf of the appellant it was contended that as a result of the decision under chapter Il A declaring Lord Jagannath s estate a trust estate the same must be deemed to have been excluded from the scope of the Act and this decision became final and continued to remain effective even after the repeal ot  Chapter II A
The right which was acquired under section 13 I cannot disappear on the repeal of Chapter Il A as the estate in question went completely out of the ambit of the Act
The intention of the Legislature to include Lord Jagannath s estate within the expression trust estate in cl
oo in section 2 by the Amending Act 1974 was clearly to spare the said estate permanently from the mischief of the Act
Dismissing the appeal this Court HELD l
There is no infirmity in the notification dated 1831974 issue under
3 A of the Act737El 2
It is manifest from the language of section 13 l that it saves a trust estate so declared under section 13 G from the operation of a notification issued under section 3 or 3 A but does not extend the benefit any further
The provisions do not confer protection from the Act itself and cannot be interpreted to clothe it with a permanent immunity from being vested by a later notification issued under the Act
737A BI 3
Sections 7 A X A 8 D and 8 E of the Act include special provisions for a trust estate and unmistakably indicate that trust estates are within the purview of the Act
The benefit they receive from a declaration under section 13  is limited and referable only to a vesting notification issued earlier
737Dl