* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C) No. 1417/1991 % Reserved on: 1st August, 2012 Decided on: 30th August, 2012 DIRECTOR GENERAL ICAR NEW DELHI AND ORS Petitioners Through: Mr. [ENTITY], Advocate. versus WORKMEN AND ORS Respondents
Through: Mr. [ENTITY], Advocate.
Coram:
HON'BLE MS. JUSTICE [ENTITY]
1. By the present petition the Petitioner challenges the award dated 2nd May, 1990 by which the learned Tribunal allowed merger of two scales of Rs.200-250 and Rs.210-290 from the date of reference. Further the Tribunal held that the supporting staff was entitled to 5 years assessment for purposes of promotion on the patter of the one applicable to scientific and technical staff and that the workmen were entitled to pay for the strike period i.e. from 5th March, 1979 to 13th April, 1979.
2. In the present writ petition though the Petitioner had challenged the direction of the Tribunal with regard to payment of wages to the workmen for the strike period, that is, 5th March, 1979 to 13th April, 1979 also however, during arguments the said prayer was not pressed as the payments for the said period had already been made to the workmen. Learned counsel for the Petitioner contends that the Petitioner is a society registered under the [ACT], fully owned, financed and controlled by the Government of India and created for the purpose of scientific and agricultural research to retain the best possible talent in the scientific and technical post. With the approval of the Union Cabinet, it was decided to make special provisions for the promotion of the scientific and technical staff whereby they are considered for promotion from one grade to the next higher grade irrespective of occurrence of vacancies in the higher grade.
Employees are assessed for grant of promotion on the basis of their performance during relevant period of 5 years. Pursuant to the recommendation of the Expert Body Reports and following the recommendations of Honble Mr. Justice [ENTITY] with effect from 1st October, 1975 the posts were classified into:
i. Agricultural Research Services for Scientific Staff and ii. Technical Services for Technical Staff.
3. With effect from 1st December, 1975, the cadre of supporting staff was also reconstructed and new recruitment rules were framed for the supporting staff. The cadre of the supporting staff was divided into four grades i.e. Grade-I Rs. 196-232, Grade-II Rs. 200-250, Grade-III Rs. 210-290 and Grade-IV Rs.225-308. According to the recruitment rules for supporting staff, the direct recruitment is done at the Grade-I level and thereafter vacancies in Grade-II to Grade-IV are filled up on the basis of promotion failing which direct recruitment. The 4 grades of supporting staff are based on the pattern of Rules and Regulations of Government of India, which are applied mutatis mutandis to the Petitioner-Indian Council of Agricultural Research (ICAR). The appointments and promotions to the supporting staff are made in accordance with the recruitments rules framed for the posts.
Respondent No. 1 resorted to an illegal strike from 5 th March, 1979 to 13th April, 1979 with two primary demands, that is, the merger of two grades viz. Rs. 200-250 and Rs. 210-290 of the supporting staff and applicability of the Five Yearly Assessment Promotion on the pattern applicable to the Scientific and Technical staff. Respondent No. 1 agitated its grievance before the Respondent No. 3 resulting in failure of conciliation proceedings. Consequently, a reference dated 24th February, 1982 under [SECTION] and [SECTION] of the [ACT] (in short the [ACT]) was sent on the following terms:
"i. Whether the workmen are entitled to wages for the strike period from 5th March, 1979 to 13th April, 1979, if so, what directions are necessary in this behalf?
ii. Whether the two grades of viz. Rs. 210-290 and Rs. 200- 250 merit merger? If so, what directions are necessary in this behalf?
iii. Whether five yearly assessment for the purpose of promotions on the pattern of one applicable to scientific technical staff be made applicable to the supporting staff? If so, what directions are necessary in this behalf?
4. Pursuant to the pleadings of the parties the following issues were framed by the Industrial Tribunal:
"i. Whether the Respondent/management is not an industry as alleged in para no. 1 of the preliminary objections of the W.S.?
ii. Whether the reference has been made by the appropriate authority, as alleged in para 2 of the preliminary objections?
iii. Whether the present reference is not maintainable in view of the preliminary objections of para No. 3 and 4 of the written statement?
iv. Whether [ENTITY] has locus standi to pursue this reference?
v. As per terms of reference."
5. In the present petition though the learned counsel for the Petitioner has pressed that it is not an industry however, in view of the decision of the Honble Supreme Court in [PRECEDENT] there can be no dispute that the Petitioner is an industry. Thus the main point of challenge in the present petition is regarding the two directions issued by the learned Tribunal namely directing the merger of the two grades and grant of Five Yearly Assessment Promotion to the members of Respondent No.1. Byelaw 21 framed under [SECTION] of the Rules of Petitioners Society lays down the categorization of personnel into Scientific, Technical, Administrative, Auxiliary and Supporting Staff. Byelaw 30(a) framed under [SECTION] of the Petitioners society states that except in regard to matters for which specific provisions have been made in the Rules, Byelaws, Regulations or Orders, the Service and Financial Rules framed by the Government of India would apply mutatis mutandis to the employees of the society. The governing body has been given the powers to relax the requirement of any rule of earlier sub-rule to such an extent and subject to such conditions as may be considered necessary. The supporting staff, who are Class-IV employees, prior to the implementation of the 6th Pay Commission were recruited with the qualification of middle class depending upon the nature of job as per the [ACT] and Byelaws. The supporting staff is recruited to assist the Scientific, Technical and Administrative staff physically. The recruitment is made at the lowest level, that is, at Grade-I level and thereafter the vacancies in the Grade-II, III and IV are to be filled up by promotion on availability of vacancies and as per the roster point. There is no direct recruitment in Grade-II to IV. The Recruitment Rules of the Administrative and Supporting staff are different. The scheme of Five Yearly Assessment Promotion is applicable to Scientific and Technical staff only. The nature of duties is entirely different from that of scientific and technical staff and they could not be considered at par. The classification/categorization of supporting staff is at par with the Government of India and is in consonance with the 3rd, 4th and 5th Pay Commissions. Vide 6th Pay Commission all group D posts have been upgraded to Group-C category w.e.f. 1st January, 2006 and nomenclatured as Skilled Supporting Staff. Relying upon [PRECEDENT]; [PRECEDENT]; [PRECEDENT] it is contended that the Tribunal had no jurisdiction to grant merger of two grades in case of supporting staff. The classification of posts into different categories with different pay scales is an administrative function in which the Courts cannot interfere. The Tribunal further exceeded its jurisdiction by granting benefit of Five Yearly Assessment Promotion to the supporting staff on the pattern of Scientific and Technical staff. By extending the benefit of Five Yearly Promotion to the supporting staff, the learned Tribunal had entered into an administrative domain and passed orders in respect of the policies and decisions, which are best left to the executive to decide. Hence the impugned award be set aside to the extent prayed for above.
6. Learned counsel for Respondent No.1 on the other hand contends that in the year 1975 the Management had arbitrarily and discriminately changed the method of promotion and pay scale of Scientific, Technical and the Supporting Staff. The Petitioner granted Five Yearly Assessment Promotion to the Scientific and Technical staff irrespective of occurrence of any vacancy in the higher grade. Due to the assessment promotion granted to the technical staff, the Petitioner singled out Respondent No.1 from Five Yearly Assessment Promotion system. The action of the Petitioner is arbitrary and violative of [SECTION] and [SECTION] of the [ACT]. Relying upon [PRECEDENT] it was contended that a particular establishment cannot make rules applicable to particular individual cases or section of same class or category. The purpose of Scientific, Technical and Supporting Staff is the same, that is, to achieve advancement in the field of research and education. The members of the Respondent No.1 cannot be singled out by not granting the benefit conferred to the scientific and technical staff. The Management witness has admitted that apart from the four grades of unskilled, semi skilled, skilled and highly skilled, there are no other grades. The Management witness has also admitted that the members of Respondent No. 1 are doing skilled nature of work. The supporting staff was essentially an industrial worker and they should be equated simply with Class IV staff of the Government of India. The management had grouped the supporting staff in such a way that they are not covered by the assessment scheme. During the strike, the Petitioner actually agreed to merger of the two scales. Thus the conclusion arrived at by the learned Industrial Tribunal is legal and justified. Reliance is placed on [PRECEDENT].
7. I have heard learned counsel for the parties. The Petitioner is a society registered under the [ACT] but set up substantially as an adjunct of the Government of India. In 1926 the Royal Commission on Agricultural was set up which recommended setting up of Imperial Council of Agricultural Research. It was later registered as a society under the [ACT]. The ICAR is an autonomous organization. The administrative and financial control of the government in the society is all pervasive. The society has been set up with an advent object of research in agriculture and allied subject so that the country may move to the modern ages of agriculture and technology. For the smooth functioning of the society, byelaw 21 categorizes its personnel into Scientific, Technical, Administrative, Auxiliary and Supporting. Byelaw 21 reads as under: -
21. The posts in the Council shall be categorized as Scientific, Technical, Administrative (including Accounts), Auxiliary and Supporting on the basis of the following criteria:-
(a) Scientific: Scientific personnel shall be those who are engaged in agricultural research and education (including extension education) whether in physical, statistical, biological, engineering, technological or social sciences.
This category shall also include persons engaged in planning, programming and management of scientific research.
(b) Technical: Technical personnel shall be those who perform technical service in support of research and education whether in the Laboratory, Workshop or field, or in areas like Library, Documentation, Publication and Agricultural Communication.
(c) Administrative: Administrative personnel shall be those who provide administrative support for the work of the Laboratory/ Institute/Headquarters Organization.
(d) Auxiliary: Auxiliary personnel shall be those who are not directly connected with the research and education activities of the Organization, and are not covered by the other categories defined in this bye-law.
(e) Supporting: Supporting personnel shall be those who generally help and support the above four categories of staff. They may be skilled, semi- skilled or unskilled.
The categorization of posts shall be done in the Council with the approval of the Governing Body. The Governing Body shall have power to alter, amend or add to the above criteria for classification of posts with the approval of the President."
8. [SECTION] and [SECTION] of the Petitioners Society read as under:
"30(a).Except in regard to matters for which specific provision has been made in the Rules, Byelaws, Regulations or Orders made or issued by the Society, the service and financial Rules framed by the Government of India and such other Rules and Orders issued by the Government of India from time to time, shall apply mutatis mutandis to the employees of the Society in regard to matters concerning their service conditions.
(b) Notwithstanding anything contained in this Bye-law, the Governing Body shall have the power to relax the requirement of any Rule mentioned in (a) above of the Bye-law to such extent and subject to such conditions as may be considered necessary.
[SECTION]. The [ACT], and the [ACT], of the Government of India for the time being in force shall apply so far as may be, to the employees of the Society subject to the modification that:-
i) reference to the 'President' and 'Government Servants' in the [ACT] shall be construed as references to the 'President of the Society' and 'Officers and employees of the 'Society' respectively, and
ii) reference to 'Government' and 'Government Servant' in the [ACT] shall be construed as references to the 'Society' and 'Officers and employees of the Society' respectively."
9. A perusal of the Byelaws shows that the matters for which no specific provision is made in the Rules, Byelaws, Regulations or orders made or issued by the society, the same will be governed by the Services and Financial Rules set up by the Government of India mutatis mutandis. The members of Respondent No. 1 are not daily rated workers but regular appointees selected through due process as and when the same takes place in Grade-I and thereafter if the vacancies are available, as per the seniority they are promoted to the various levels. The comparison of members of Respondent No.1 with the unskilled, semiskilled and highly skilled daily rated workmen in CPWD is misconceived as the requirement of the worker i.e. educational qualification etc. are different in the two streams. Learned Tribunal based its decision for the merger of the two grades on the basis that Sh. [ENTITY], WW1, the President of the Respondent No. 1 stated in his examination in chief that a reply was sent by the Management during the strike that if the Sangh undertook to withdraw the remaining three demands then the Management would be willing to merge the scales of Rs. 200-250 into Rs. 210-290. As regards this letter there was no cross-examination of WW1 rather Sh. [ENTITY], MW1, Chief Administrative Officer of the Petitioner in his examination stated that the demand of the merger of two scales as also introduction of Five Yearly Assessment Promotion of the supporting staff were duly considered by the Management and the government of India including the Ministry of Finance but the Ministry of Finance rejected these demands. Since the 3rd, 4th and 5th Pay Commissions recommended four gradations there was no justification for merger of Grade- IV. It was further stated by MW1 that the Petitioner cannot merge the two groups of its own. Thus the finding of the learned Tribunal based on the alleged examination of WW1 is wholly erroneous. It is well settled that the Courts are required to refrain from passing orders as regards pay parity and pay scales are concerned.
10. In [PRECEDENT]. (2010) 11 SCC 694 it was held:
"14. This Court time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the Government to implement the same. Equation of posts and equation of salaries is a matter which is best left to an expert body. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to acceptance or rejection, the courts cannot compel the State to accept the recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commission. (See [PRECEDENT] and [PRECEDENT]) It is no doubt true, the constitutional courts clothed with power of judicial review have jurisdiction and the aggrieved employees have remedy only if they are unjustly treated by arbitrary State action or inaction while fixing the pay scale for a given post."
11. In [PRECEDENT]. (2006) 9 SCC 406 It was held:
"13. He next contended that fixation of pay and parity in duties is the function of the executive and financial capacity of the Government and the priority given to different types of posts under the prevailing policies of the Government are also relevant factors. In support of this contention, he has placed reliance on [PRECEDENT] and [PRECEDENT]. There is no dispute nor can there be any to the principle as settled in [PRECEDENT] that fixation of pay and determination of parity in duties is the function of the executive and the scope of judicial review of administrative decision in this regard is very limited. However, it is also equally well settled that the courts should interfere with administrative decisions pertaining to pay fixation and pay parity when they find such a decision to be unreasonable, unjust and prejudicial to a section of employees and taken in ignorance of material and relevant factors."
12. In [PRECEDENT] it was held:
"10. It is to be kept in mind that the claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge, While taking a decision in the matter several relevant factors, some of which have been noted by this Court in the decided case, are to be considered keeping in view the prevailing financial position 'and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the government is patently irrational unjust and prejudicial to a section of employees and the government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the government to be unsustainable then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of employees, one in the State Secretariat and the other in the Central Secretariat It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre."
13. Thus it has to be seen whether there is any arbitrariness and illegality in the action of the Petitioner failing which the Courts cannot interfere in the grant of pay scales or merger thereof. In the present case the members of Respondent No. 1 are claiming merger of the two grades in view of the fact that similar grades are available in CPWD. As held in the catena of decisions that the pay parity or parity in the pay scales can be claimed if the employer is the same and with the same class of employees. The Honble Supreme Court in [PRECEDENT] observed:
"9. In public services, nature of work in two services or in the same service, the nature of the work of the two groups may be more or less same. But merely on that ground they are not entitled to the same scale of pay. It is well known that scales of pay are fixed by expert bodies like the Pay Commissions, which consists of persons having specialized knowledge of the subject. Such Commissions while fixing the scales of pay or revising the same, have to go in depth, not only into the nature of work by members of the same service and members of different services but also various other factors before the scales of pay are fixed. One of the primary concerns of such Pay Commissions is to remove any anomaly and to see that members of different services get scales of pay and other emoluments not only according to the nature of work but also according to educational qualifications, responsibilities of the posts and experience etc. As such, 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.
10. This Court in the case of [PRECEDENT] , said that in addition to the principle of 'equal pay for equal work', the pay structure of the employees of the Government should reflect many other social values. It was said:
"The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical requirements, disagreeableness of the task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors.
In the case of [PRECEDENT], it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of [PRECEDENT], by a three Judges Bench of this Court. Recently, in the case of [PRECEDENT], a claim for equal pay by a group of Pharmacists was rejected saying that the 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 was unreasonable."
14. In Federation of All India Customs and Central Excise Stenographers (Recognized) (supra) the Honble Supreme Court held:
"7. Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, 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. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasise that equal pay for equal work is a concomitant of [SECTION] of the [ACT]. But it follows naturally that equal pay for unequal work will be a negation of that right.
11. In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less-it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula. If it has a rational nexus with the object to be sought for, as reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact. In the light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved. In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs."
15. This Court in [PRECEDENT] decided on 23rd July, 2012 while dealing with the similar situation held:
"10. We may also point out that the learned counsel for the petitioner submitted and, in our view, rightly, that the direction of the Tribunal is contrary to the service rules of the ICAR which provide for a specific superannuation age of 62 years. The Tribunal has sought to re-write the service rules of the ICAR by virtue of the impugned decision. That is impermissible. We may point out that the Tribunal, while it has gone to great lengths in trying to arrive at the conclusion that the ICAR scientists are to be considered as occupying regular teaching positions, it has failed to consider the very fundamental issue of whether the Government of India letters dated 23.03.2007 and 19.04.2007 were at all applicable to the ICAR. We find this strange particularly because the ICAR had considered several representations from its scientists as also from the ARS Scientists Forum and after considering the totality of the circumstances, it came to the conclusion that the benefit of extending the age of superannuation from 62 to 65 years could not be granted to the scientists working with the ICAR for the reasons indicated in the circular dated 22.06.2007."
[SECTION]. In view of the above discussion and since the matter regarding merger of the two pay scales, that is, Rs. 200-250 and Rs. 210-290 into one pay scale and scheme of Five Yearly Assessment Promotion were exclusively within the administrative domain, I am of the view that the learned Tribunal ought not to have allowed merger of two pay scales and entitled the members of Respondent No.1 to the scheme of Five Yearly Assessment Promotion. Further merely because in the two other cadres of the Petitioner, that is, the Scientific and the Technical staff, the scheme of Five Yearly Assessment Promotion is available, the same would not entitle the members of Respondent No. 1, who are all supporting staff, to be bestowed with the same privilege. The impugned award is set aside to the extent it directs merger of two scales i.e. Rs.200-250 and Rs.210-290 into one pay scale and allowed applicability of scheme of Five Yearly Assessment Promotion to the members of Respondent No.1.
17. Petition is disposed of.
([ENTITY]) JUDGE AUGUST 30, 2012 'vn'