IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 5743-CAT of 2011 Date of Decision: March 31, 2011 Hawa Singh ...Petitioner Versus Union of India and others ...Respondents CORAM: HON'BLE MR JUSTICE M.M. KUMAR HON'BLE MR JUSTICE T.P.S. MANN Present: Mr. Inder Pal Goyat, Advocate, for the petitioner. 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? M.M. KUMAR, J. 1. The short issue raised in this petition filed under Article 226 of the Constitution is whether the respondents are under any legal obligation to create 10% quota of selection grade posts by granting higher pay scale of pay to the senior employees in the cadre of Supervisor merely because the Department of Telecommunication has decided to grant the same to its Supervisors. 2. The petitioner is working on the post of Supervisor in the pay scale of ` 5000-8000 under the Ministry of Defence and seeks parity in the matter of selection grade post with the Supervisor of Department of Telecommunication, who draw the salary in the pay scale of ` 6500-10500. The petitioner has challenged the order dated 7.7.2010 (P-14) passed by the Chandigarh Bench of the CWP No. 5743-CAT of 2011 Central Administrative Tribunal (for brevity, ‘the Tribunal’) dismissing the original application filed by him by upholding the view of the respondents taken in their reply dated 8.7.2008 (P-8) to the legal notice dated 21.4.2008, which was sent by the petitioner. The Tribunal has rejected the claim of the petitioner by holding as under:- “9. ……the petitioner is demanding the scale of Rs. 6500-10500, which had been granted by the DoPT to 10% senior-most employees in the cadre. But in the instant case, the requirement of the Ministry of defence with regard to the services of the applicant cannot be equated with the requirement of the similarly placed employees working in the BSNL (earlier DoT), and unless functional requirements and justification for creation of higher posts is made out, the Tribunal cannot function as a Pay Commission for the purpose and ask the respondents to grant the higher scale to 10% senior-most employees in the cadre of the applicant. ……” 3. The Tribunal has made a reference to adjudication in O.A. No. 117/HR/2004 by observing that the matter has already been decided against the petitioner and it cannot be directed that he should be given selection grade of ` 6500-10500 by designating 10% of the posts for the senior-most employees. The basis usual reason which has been recorded by the Tribunal is that the Courts are not well equipped and the matter can at best be left to the expert body like the Pay Commission. The Tribunal has noticed the fact that the issuance of direction would result into passing an order for creation/upgrading of 10% of the posts in the higher pay scale 2 CWP No. 5743-CAT of 2011 and that there was neither any organisational nor any functional justification for issuance of any such direction. The Tribunal also found that the Ministry of Defence and Pay Commission has also not given parity to the petitioner with his counter parts working in the Department of Telecommunication (now BSNL). 4. We have heard learned counsel at a considerable length and find that the view taken by the Tribunal does not suffer from any legal infirmity. The nomenclature of a post may be the same but its functions may be different. A number of other factors like the size of the cadre, further avenues of promotion, age of retirement, working conditions etc. would be relevant for the purposes of finalising the pay scale of any post. Merely because the Department of Telecommunication has given selection grade to 10% of the posts keeping them in the higher scale of ` 6500-10500 would not justify that 10% of selection posts should also be created in the cadre of Supervisor by the Ministry of Defence where the petitioner is working. Apart from the fact that there is no functional requirement, the issuance of direction would result into financial implications which need to be taken into account by the Courts. As rightly observed by the Tribunal, the Courts are not expert bodies which may determine the entitlement of the employees to a particular scale or to selection grade. We may draw support from the following observations made by Hon’ble the Supreme Court rendered in the case of State of U.P. v. J.P. Chaurasia, (1989) 1 SCC 121. “……More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be 3 CWP No. 5743-CAT of 2011 the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it. The Court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration.” 5. As a sequel to the above discussion we are of the view that the order passed by the Tribunal is unexceptionable and the writ petition does not merit admission. Accordingly, this petition fails and the same is dismissed. (M.M. KUMAR) JUDGE (T.P.S. MANN) March 31, 2011 JUDGE Pkapoor thirteen 4