IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 8.9.2011 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Petition No.9528 of 2010 and M.P.No.1 of 2010 1.Union of India, rep.by Secretary to Government for Health, New Delhi. 2.The Director General, Indian Council of Medical Research, New Delhi. 3.The Director, Vector Control Research Centre, Gorimedu, Puducherry ... Petitioners Vs. 1.A.M.Bazeer Ahamed 2.K.Murugan 3.N.Aruna 4.J.Veeraghavelu 5.R.Vasudevan 6.Shrihari Muruma 7.S.Kamalasakaran 8.K.R.Pushpalatha 9.K.Sathianathan 10.P.M.Ajithalal 11.M.Karigovindan 12.P.M.Azad 13.Jessu S.Mathew 14.S.B.Chakkaravarthy 15.N.Pachaiyappan 16.T.Mani 17.S.Chandrasekaran 18.S.Maria Joseph 19.R.Selvaraju 20.P.Kumaran 21.Dilipkumar Panigrahi 22.M.Manoj Kumar Pattanaik https://hcservices.ecourts.gov.in/hcservices/ 23.M.Premalatha Acharya 24.Dolly Choudhury 25.Indirapadhy 26.S.Rajendiran 27.V.Padmanaban 28.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the recrods relating to the order dated 18.9.2009 made in O.A.No.875 of 2008 on the file of the Registrar, Central Administrative Tribunal, Madras Bench, Chennai, the 28th respondent herein and quash the same. For petitioners : Mr.V.K.Rao, Sr.Counsel for Mr.M.T.Arunan for Petitioners 2 and 3. & Mr.Y.Prakash for 1st Petitioner. For R.1 to R.27 : Mr.V.Ajaykumar * * * O R D E R ELIPE DHARMA RAO, J. Respondents 1 to 27 are working as Laboratory Assistants in the Vector Control Research Centre, Pondicherry, which is one of the permanent institutes of Indian Council of Medical Research, established in 1975. It is a centre of excellence for research and training in vector-borne diseases and control and a World Health Organisation collaborating centre for research and training in lymphatic filariasis and integrated methods of vector control. It has been carrying out basic and applied research with the primary objective of finding newer methods and developing strategies for the control of vector borne diseases. 2. The respondents 1 to 27/applicants were originally granted the pay scale of Rs.1200-2040 as per the recommendations of the IV Pay Commission and in the V Pay Commission, their pay was fixed at Rs.3050-4590. When the applicants and other similarly placed persons have represented regarding the pay anomaly in fixation of the pay of Rs.3050-4590, the matter was referred to the Pay Anomaly Committee, which has recommended the implementation of the pay scale of Rs.4000- 6000 to the Lab Assistants with effect from 1.1.1996 on par with other categories of employees. The said recommendation was accepted by the Government and an order was issued on 30.10.2000, granting the revised pay scale of Rs.4000-6000 with effect from 1.1.1996 on par with the counterparts of the applicants working under the control of https://hcservices.ecourts.gov.in/hcservices/ Indian Council of Medical Research. But, on 30.5.2003, an order was issued by the Indian Council of Medical Research, stating that the pay of the Research Assistant/Statistical Assistant has to be rolled back from the revised pay scale of Rs.5000-8000. According to the respondents 1 to 27, even though there was no specific direction to roll back the pay of Lab Assistants, it was also rolled back to Rs.3050-4590. The repeated representations of the applicants to the authorities concerned to get back their benefit, have succeeded, ultimately, with the grant of revised pay of Rs.4000-6000 with effect from 1.9.2005, instead of 1.1.1996. Therefore, the applicants, once again, have requested the Health Department to implement the pay scale, as has been granted earlier, on and from 1.1.1996. The Health Department, has sent a letter to the Finance Department, dated 19.5.2006, requesting the Finance Department to consider the implementation of the revised pay scale of Lab Assistants with effect from 1.1.1996, but since it has not yielded any positive reply, the applicants have filed O.A.No.7 of 2008 before the Tribunal, praying for implementation of the pay scale of Rs.4000-6000 with effect from 1.1.1996 and for payment of arrears. The third respondent had filed a reply statement before the Tribunal, stating that the Ministry of Finance has not accepted the request for grant of the pay scale with retrospective effect and prayed for dismissal of the O.A. The Tribunal, by the order dated 24.7.2008, has directed the respondents therein viz. the petitioners 1 and 3 herein to consider and pass speaking order on the representation of the applicants dated 22.5.2006. Pursuant thereto, the third petitioner herein has passed an order dated 9.10.2008, rejecting the representation of the applicants dated 22.5.2006 on the ground that Ministries i.e. Ministry of Health and Family Welfare and the Ministry of Finance have not agreed to grant the pay scale of Rs.4,000-6000 in accordance with the recommendations made by the 5th Pay Commission. 3. This order of the third petitioner was challenged by the applicants/respondents 1 to 27 by filing O.A.No.875 of 2008 before the Tribunal and since the Tribunal, by the order dated 18.9.2009, has allowed the said application, thereby directing the respondents therein to grant the pay scale of Rs.4000-6000 to the applicants from 1.1.1996 as per the recommendation of the V Pay Commission, within a period of three months from the date of receipt of a copy of the said order, the respondents therein have come forward to file this writ petition. 4. The one and only ground urged by the petitioners in this writ petition is that the Government of India has not accepted to grant the pay scale retrospectively i.e. from 1.1.1996 by the order dated 21.8.2007, which was forwarded to the Vector Control Research Centre by the Indian Council of Medical Research by the communication dated 18.12.2007. https://hcservices.ecourts.gov.in/hcservices/ 5. The learned senior counsel for the petitioners would argue that fixation of pay scales to different cadre of employees is the function of the Executive/Government and the Courts should not interfere with the same. He has further argued that in the case on hand, the Government has taken a specific stand that the applicants are not entitled to fixation of pay scale with retrospective effect and hence the order passed by the Tribunal, causing interference into such a rejection order passed by the Government is very much unwarranted and would pray to allow this writ petition. 6. On the contrary, the learned counsel appearing for the respondents 1 to 27/applicants before the Tribunal would argue that when all other similarly situated employees in other departments are enjoying the benefit with retrospective effect, there is no justification on the part of the petitioners, in denying the same benefit to the applicants and hence the order of the Tribunal needs no interference by this Court and would pray to dismiss this writ petition. 7. In the case on hand, the specific plea of the respondents 1 to 27/applicants is that similarly situated employees in other Departments were given the pay benefit from 1.1.1996 and only in their case, the same was rejected. 8. In support of his contention that fixation of pay scales is the function of the Executive, the learned senior counsel appearing for the petitioners would rely on a judgment of the Honourable Apex Court in UNION OF INDIA vs. ARUN JYOTI KUNDU AND OTHERS [(2007) 2 SCC (L&S) 695], wherein the Honourable Apex Court has held: "It was open to the Government to extend a benefit to a set of its employees with effect from a particular day on the basis of some anomaly found in the report of the Fifth Pay Commission. In such a case there would arise no discrimination because the very implementation of the Fifth Pay Commission Report would not entitle the respondents to any benefit. The fact that notwithstanding the Fifth Pay Commission not recommending, particularly, the payment of higher scale to two sets of typists, typists in English language and typists in Hindu language, the Government chose to give them relief with effect from 31.1.2000 would not justify an inference of discrimination or a finding that the authority has acted arbitrarily or unreasonably. Once the recommendations of the Pay Commission are accepted, in full, it could also give effect to it from the date recommended in that behalf. But when admittedly no provision was made in respect of the English and Hindi typists and they pointed to the anomalies and the Government on the basis of the recommendation of the Anomalies Committees decided to give them the scale with effect from 31.1.2000, it could not be held to be https://hcservices.ecourts.gov.in/hcservices/ discriminatory or to be beyond the power of the Government." 9. In the above case, the Fifth Pay Commission had not recommended the payment of higher scale to two sets of typists, but the Anomaly Committee has accepted the claim of the employees and recommended for higher pay scales to them which was implemented by the Government and when the employees of the Railways in typist cadre have sought for the same treatment, the Honourable Apex Court has held in the manner narrated above. But, in the case on hand, when there was anomaly in fixation of pay scales in the V Pay Commission, the applicants' grievance was referred to the Anomaly Committee and based on its recommendations, the pay of the applicants was fixed at Rs.4000-6000 from 1.1.1996. But, with no rhyme or reason, the same was suddenly withdrawn and later on, again, it was granted from 1.9.2005 instead of from 1.1.1996. In view of different set of facts, the above said judgment of the Honourable Apex Court has no application to the facts of the case. 10. We are quite aware that the principle of 'equal pay for equal work' has undergone sea changes by various pronouncements of the upper forums of law, particularly by the Honourable Apex Court. Two groups of employees may be doing the same work, yet, they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment etc. are different. It is well settled by the Supreme Court that only because nature of work is same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply. 11. But, in the case on hand, as has already been pointed out supra, the Anomaly committee itself has recommended grant of pay scale of Rs.4000-6000 to the applicants, based on which alone, the benefit was extended to the applicants from 1.1.1996. But, after certain period of time, the same was withdrawn once again without any rhyme or reason and the only ground urged on the part of the petitioners/Government is that the Government of India has not accepted for such grant of pay scales with effect from 1.1.1996. No reason whatsoever has been offered on the part of the Finance Ministry as to how the applicants are not entitled to the pay scale from 1.1.1996 but only from 1.9.2005. It would have been a different case had it been the case of the authorities that higher pay scale of Rs.4000-6000 was erroneously granted to the applicants and that the applicants do not possess requisite educational qualification and they stand completely on a different footing when compared to the other such similarly placed employees in the other departments with regard to their mode of appointment, experience etc. and hence their pay needed reversion. The authorities cannot raise such a plea for the reason that there is no justifiable grounds on their part to https://hcservices.ecourts.gov.in/hcservices/ reject the benefit of higher pay already being enjoyed by the applicants and such other similarly placed persons. The 'order' passed by the Ministry of Finance, Department of Expenditure, E-III B-Branch, placed before us in the typed set of papers, is bereft of any reasons, except saying that 'the proposal has been considered in this Department and our earlier stand for giving the benefit prospectively is reiterated.' 12. In UNION OF INDIA AND OTHERS vs. JAGDISH PANDEY AND OTHERS [(2010) 7 SCC 689], relied on by the learned counsel appearing for the respondents 1 to 27, the Honourable Apex Court has held that 'there has to be substantial difference in method of recruitment, eligibility, duties and responsibilities before substantial disparity in pay scale can be justified and unilateral withdrawal of same pay scale granted for years impermissible.' This judgment of the Honourable Apex Court squarely applies to the case on hand, since it is not at all the case of the authorities that the applicants stand completely on a different footing than the employees of other departments, who are enjoying the same scale of pay of Rs.4000-6000 from 1.1.1996. 13. When the Pay Anomaly Committee has recommended grant of such a pay for the applicants from 1.1.1996 and was also granted by the Government and was being enjoyed by the applicants, taking away the said benefit once again, that too without any justifiable grounds, is nothing but an illegality committed by the authorities. Even in the grounds of this writ petition and also in the counter filed before the Tribunal, the only stand taken by the petitioners/authorities is that the Finance Department has not accepted to grant the pay scale to the applicants from 1.1.1996. Such a blunt and unreasoned decision would not at all be said to be in due compliance to the earlier direction of the Tribunal, passed in O.A.No.7 of 2008, whereby and whereunder the authorities were directed to consider the representation of the applicants and to pass a 'speaking order'. 14. In UNION OF INDIA AND ANOTHER vs. S.THAKUR [(2009) 1 SCC (L&S) 329], the V Pay Commission recommended that out of 52 post of Assistant Director in the Intelligence Bureau, 40 posts be upgraded and placed in the pay scale of Rs.3700-5000, whereas 12 posts be upgraded as Joint Deputy Director and placed in the pay scale of Rs.4500-5700. Accordingly, by the Government Order dated 16.10.1998, 40 posts of Assistant Directors were placed in the pay scale of Rs.12,000-16,500 corresponding to the pre-revised scale of Rs.3700- 5000 and the remaining 12 posts were placed in the scale of Rs.14,300-18,300 corresponding to pre-existing scale of Rs.4500-5700 and re-designated as Joint Deputy Directors. In the said order it was mentioned that the implementation of the orders involved restructuring of the executive cadre and redistribution of posts and therefore higher scales would be applicable only prospectively i.e. from 1.10.1997. The incumbents, who were similarly situated, were granted benefit of higher pay scale with effect from 1.1.1996 and a retired Assistant Director gave a representation that the benefit of https://hcservices.ecourts.gov.in/hcservices/ upgraded scale be extended to him from 1.1.1996. On rejection of the said representation, he approached the Tribunal and the Tribunal directed the authorities to grant the upgraded scale of Rs.12,000- 16,500 to him with effect from 1.1.1996, holding that delaying the benefit of revision of pay scale till 1.10.1997 was unreasonable. Aggrieved, when the Government filed a writ petition before the High Court, the same was dismissed, resulting in their approaching the Honourable Apex Court. Before the Apex Court, a similar argument as has been advanced on behalf of the writ petitioners/Government in the present case, was advanced to the effect that as restructuring of cadre and redistribution of posts was involved insofar as the Assistant Directors were concerned and therefore the policy decision taken by the State Government to give benefit of upgraded scale to an Assistant Director (Executive) with effect from 1.10.1997 should not have been interfered with by the Tribunal and by the High Court. In such circumstances, the Honourable Apex Court has held as follows: “There is no dispute nor there can be any, to the principle that fixation of pay and date from which the benefit of revised pay scale would be admissible is the function of the executive and the scope of judicial review of such an administrative decision is very limited. However, it is equally well settled that the courts would interfere with the administrative decisions pertaining to pay fixation and pay parity as well as the date from which the revised pay scales would be made applicable if it is found that such a decision is unreasonable, unjust and prejudicial to a section of the employees.” (emphasis by us) 15. Therefore, though fixation of pay scales is the function of the Executive, Courts would interfere with the administrative decisions pertaining to pay fixation and pay parity as well as the date from which the revised pay scales would be made applicable, if it is found that such a decision is unreasonable, unjust and prejudicial to a section of the employees. When it is the stand of the authorities that the Ministry of Finance has not accepted the grant of such a benefit to them, the applicants should have made the Ministry of Finance also as a party respondent to the proceedings before the Tribunal. But, they did not do so. However, no objection has also been taken on the part of the authorities/writ petitioners herein. In these circumstances, keeping in mind the well settled principle of law that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot and should not stand in the way of administration of justice and Law has to bend before Justice and also taking into consideration the fact that Union of India is a party to the proceedings, through its Secretary to Government for Health, New Delhi/the first petitioner herein and further to avoid any miscarriage of justice, we have no hesitation to hold that ends of justice would be met by dismissing https://hcservices.ecourts.gov.in/hcservices/ this writ petition and by issuing proper direction to the authorities concerned, including the Ministry of Finance, Government of India, to pass necessary orders, towards implementing the pay scale to the applicants. For all the above reasons and following the above judgments of the Honourable Apex Court, we have no hesitation to hold that the Tribunal has not committed any error in allowing the prayer of the applicants. Accordingly, this writ petition filed by the Administration is dismissed. The writ petitioners and also the Secretary to Government for Ministry of Finance, Government of India, New Delhi are directed to issue consequential orders of implementing the pay scale of Rs.4000-6000 to the respondents 1 to 27 from 1.1.1996, within three months from the date of receipt of a copy of this order. No costs. Consequently, M.P.No.1 of 2010 is also dismissed. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. Rao To 1.The Secretary, Ministry of Finance, Government of India, New Delhi. 2.The Registrar, Central Administrative Tribunal, Madras Bench, Chennai. 3. The Secretary to Government for Health, Government of India, New Delhi. 4.The Director General, Indian Council of Medical Research, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ 5.The Director, Vector Control Research Centre, Gorimedu, Puducherry 1 cc To Mr.V.Ajayakumar, Advocate Sr 55634 W.P.No.9528 of 2010 jrg[co] gp/20.9. https://hcservices.ecourts.gov.in/hcservices/