JUDGMENT
R. Pal, J.
1. The petitioners are all Junior Engineers in the Farakka Barrage Project (FBP). In this writ application they have challenged the
decision of the Central Administrative Tribunal rejecting their claim for parity of pay scales with Junior Engineers in the Central Public Works Department (CPWD). Their claim for parity was based on the following facts:
2. Junior Engineers, CPWD and Junior Engineers, FBP had been consistently treated on par. Previously Junior Engineers CPWD were known as “Sectional Officers” and Junior Engineers, FBP were known as “Overseers”. In 1973 the Government of India, Ministry of Irrigation and Power in a letter to the General Manager, FBP stated :
“The service conditions and emoluments etc. of the Section Officers in the Central Public Works Department and the Overseer of the Farakka Barrage Project are the same and as such their duties should also be the same. The Overseers of the Farakka Barrage Project therefore, should maintain tools and plants including Special T&P. Accounts in accordance with the provision of CPWA Code and CPWD Manual as is done by their counter parts in the Central Public Works Department.”
3. Prior to the 4th Central Pay Commission, Junior Engineers in the CPWD and FBP enjoyed the Selection Grade. On the basis of the recommendation of the 4th Central Pay Commission that the existing Selection Grade should be discontinued and should become a promotional level, two pay scales were introduced for the Junior Engineers in the CPWD Department viz. a pay scale of Rs. 1400-2300 and the intermediate promotional pay scales of Rs. 1640-2900. As far as the Junior Engineers FBP were concerned, although the selection grade was discontinued, the promotional level of pay scales was not granted. All Junior Engineers in the FBP were given the lower pay scale of Rs. 1400-2300.
4. On 25th January 1988 an Anomalies Committee was set up to settle the anomalies arising out of the implementation of the Fourth Pay Commission’s recommendations. The Anomalies Committee, at a meeting held on 18.4.90 noted :
“….. that in FBP in CPWD the educational qualifications and method
of recruitment are identical at the entry level of Junior Engineers. The Committee also noted that the selection grade scale was in existence in FBP prior to the revision of pay scales. Staff Side invited attention to the acute stagnation prevailing in this grade. Keeping in view all these aspects the Committee recommended the pay scales as prevalent in CPWD to Junior Engineers in FBP In both the grades.”
5. In the meanwhile in 1988 the writ petitioners filed an application under section 19 of the Administrative Tribunals Act, 1985 (referred to as the first application) before the Central Administrative Tribunal, Calcutta Bench claiming parity in pay scales with Junior Engineers of the CPWD. The Tribunal allowed the application by an order dated 11th May 1990. The Tribunal held that the duties and responsibilities and nature of the work of the Junior Engineers, CPWD were identical with those of the Junior Engineers FBP. The submission of the petitioners that they were equally circumstanced with the Junior Engineers CPWD in all respects was accepted. It was held that when there was no dispute about the similarly of the two posts and the identity of their duties and responsibilities, there was no question of referring the matter to an Expert Body. In the
circumstances, the Tribunal came to the conclusion that the differentiation in the pay scale between Junior Engineers of CPWD and FBP was not warranted and that the classification was not referable to any rational basis. in allowing the petitioner’s application the Tribunal directed the respondents :
“To introduce two scales of pay for the Junior Engineers of the Farakka Barrage Project on the basis of the recommendation made by the Fourth Central Pay Commission as has been done in the cases of Junior Engineers of the CPWD within 90 days from this date and give consequential benefits to the applicants.”
6. The decision of the Tribunal was accepted by the Farakka Barrage Project and an office order was issued on 19th May, 1990 to the following effect :
“In accordance with the verdict of the Central Administrative Tribunal, Calcutta Bench dated 11th May, 1990 the Junior Engineers of Farakka Barrage project will be entitled to the following pay scales with effect from the date (i.e. 01.01.1986) as has been done in case of Junior Engineer of CPW Deptt.
1. 75% of Junior Engineers will get the pay scale of Rs. 1600-60-2600-EB-75-2900/-.
2. 25% of Junior Engineers will get the pay scale of Rs. 1400-40-1800-EB-50-2300/-.
Orders as regards Junior Engineers who will be entitled to the above scales of pay are being issued separately.”
7. Although parity in pay scales with Junior Engineers, CPWD was granted to Junior Engineers, FBP, the Junior Engineers, CPWD themselves did not accept the creation of two pay scales. They claimed that the higher pay scale of Rs. 1640-2900 should be granted to all Junior Engineers. The Junior Engineers, FBP accordingly wrote to the authorities stating that if the Government accepted the demand of the Junior Engineers of CPWD, the same should be made available to them in keeping with the decision of the Tribunal.
8. In fact the Government accepted the demand of Junior Engineers CPWD and on 22nd March 1991, in supersession of all earlier orders issued by the CPWD on the basis of the Fourth Pay Commission, the Government of India, Ministry of Urban Development (Works Division) approved the following scales of pay for Junior Engineers, CPWD; (1) initial payment in the scale of Rs. 1400-2300, (2) after completion of 5 (five) years service Junior Engineers will be placed in the scale of Rs. 1640-2900 keeping the duty and responsibility, (3) after completion of 15 (fifteen) years service Junior Engineers will be placed in the scale of Rs. 2000-3500 with the designation of Assistant Engineer (P) with effect from 1st January 1991.
9. Immediately after this, the Junior Engineers, FBP also prayed that they should be similarly treated. Their demand was forwarded by FBP to the Government of India, Ministry of Water Resources under which FBP operates. The Government of India wanted to know. inter alia, the financial implications of the proposal and the number of Junior Engineers in the
FBP who had completed 5 (five) years of service. In answering this the General Manager, FBP wrote to the Government of India on 26th July, 1991 stating :
“(ii) The total financial implications for implementing the present proposal is estimated to Rs. 5,05,000/-.
In earlier occasion while implementing the order dated 30.11.90 of the Ministry the financial implications was estimated to Rs. 7.00 lakhs as the Junior Engineers were allowed the scale of Rs. 1640-2900 as promotional grade and effective from 1.1.1986. This was intimated in this office letter No. E/P-147/VI/6221 dated 17.9.90. But as per the present proposal only 56 Nos. of Junior Engineers are now to be allowed promotional grade of Rs. 2000-3500 with effect from 01.01.1991 and 68 Nos. are to be fitted in the scale of Rs. 1640-2900 with effect from 01.01.1986. Hence it is expected there would be net saving of Rs. 1.95,000 approx. to implement the present proposal at par with the CPWD.”
10. Correspondence then ensued between the Government and FBP in which one letter is of importance. That letter is dated 31st January, 1992 from FBP clarifying its earlier letter dated 22nd January, 1992 wherein a savings of Rs. 1.95 lakhs had been mentioned. It was said :
“The saving of Rs. 1.95 lakhs, arose in a set of calculations containing an omission, the same set has been further revised and net savings correctly to be reflected at Rs.3.34 lakhs in place of Rs. 1.95 lakhs are given In the sheet enclosed.”
11. In the absence of any positive response from the Ministry of Water Resources, the Junior Engineers, FBP made a direct representation to the Ministry asking for implementation of the decision of the Tribunal. The representation met with no response till 4th August, 1992 when the matter was referred by the Ministry of Water Resources to the Ministry of Finance for their consideration.
12. In view of the continued silence on the part of the Central Government, the petitioners filed a second application under section 19 of the Administrative Tribunals Act, 1985 before the Central Administrative Tribunal challenging the failure of the authorities to extend the benefits of the revised scale already granted to the Junior Engineers, CPWD to them. The second application was disposed of by an order dated 11th January, 1994. The Tribunal was of the view :
“[Even] if it be conceded that the Govt. is taking unnecessarily long time to settle the matter, we cannot straightway direct the respondents to give the higher pay scale to the applicants. It is for the Govt. to take a decision in such a matter. In doing so, they may require to consult their Internal finance department or the Ministry of Finance, as the case may be. However, whatever may be requirements, we feel that when the General Manager has recommended the case of the applicants and has pointed out that in implementing the scheme there will be a net savings of Rs. 3.34 lakhs and when the particulars required by the Ministry have already been furnished to them long back in April, 1991 the Govt. should take a final decision in the matter as quickly as possible.”
13. Accordingly, the Tribunal directed the respondents to take a final decision in the matter taking into consideration the recommendation of the General Manager, FBP and the fact that there would be a net savings of more than Rs.3 lakhs if the Junior Engineers FBP were given the same scale as the counterparts in the CPWD. It was also directed that If the Government decided that the benefits which were granted to the CPWD by the order dated 22nd March, 1991 (and which had already been extended to the Junior Engineer of Telecom Department) should be extended to the Junior Engineers of FBP, necessary orders should be passed in that regard within the same period.
14. On 8th September, 1994 the General Manager, FBP wrote to the petitioners stating that the matter had been considered by the Ministry of Water Resources in consultation with the Ministry or Finance and the relief prayed had not been accepted. No other reason was given.
15. The petitioners then filed a third writ application before the Tribunal challenging the decision dated 8th September. 1994. In the affidavit in opposition by the respondents it was said that the Junior Engineers, CPWD had not accepted the pay scale as recommended by the 4th Pay Commission whereas the Junior Engineer of FBP had and as such the “subsequent development of 100% promotion” as introduced in the CPWD could not be claimed by the Junior Engineers of the FBP. It was further stated that the matter had already been referred to the 5th Central Pay Commission. A copy of a letter dated 6th July, 1994 of the Government of India, Ministry of Water Resources rejecting the case of the Junior Engineers, FBP was annexed to the respondents affidavit. This letter stated that although the next promotional level in both cases was Assistant Engineer nevertheless in the case of FBP the mode of fitment to the level of Assistant Engineer was 75% by promotion and 25% by direct recruitment whereas In the case of CPWD it was 50% by promotion and 50% by direct recruitment. In view of this, it was held that the case of Junior Engineers in the FBP were not on the same footing with that of CPWD Junior Engineers and therefore the same facilities of a time bound promotion scheme could not be allowed. This letter had not been communicated to the petitioners.
16. The Tribunal rejected this application on 30th April, 1997. It is recorded in the decision which is now impugned before us, that the 5th Central Pay Commission had not discussed the matter as far as the Junior Engineers of FBP were concerned. The Tribunal went on to re-appraise the question of parity between the Junior Engineers, FBP and Junior Engineers, CPWD. It held that in the judgment disposing of the first application on 11th May, 1990 there was no discussion on the workload of the two separate departments. It was further noted :
‘The CPWD J. Ers. are guided by the different set of rules. The scale of Rs. 2000-3500 was introduced in CPWD keeping in view the limited scope of promotion of Jr. Engineers to the post of Asstt. Engineers/Asst. Director. We further note that the promotion quota of CPWD Asstt. Engineers is 50% from the post of Jr. Engineer whereas In the case of F.B. Project it Is 75%. The introduction of the scale of Rs. 2000-3500 is a subsequent development which was not known to the court when the order was passed in O.A. No.757 of 1988 on 11.5.1990. The direction
given in that judgment has been fully complied with by the respondents. It being subsequent introduction of scale this being a subsequent development, we are of the view that the applicants cannot claim the benefit of that Judgment.”
17. In assailing the decision of the Tribunal the writ petitioners submitted that the Tribunal had acted beyond its jurisdiction in adjudicating afresh the question whether Junior Engineers, FBP were entitled to pay scales at par with Junior Engineers, CPWD as this very question had been adjudicated earlier on 11th May, 1990 by the same Tribunal. It was further submitted that no reason had been put forward by the respondents justifying the denial to them of the same benefit as Junior Engineers, CPWD.
18. The respondents have submitted that the revised scale was an additional scale of pay granted to the Junior Engineers, CPWD. It was submitted that the Tribunal correctly came to the conclusion that the subsequent change in the situation namely the chances of promotion justified the grant of additional pay scale to Junior Engineers, CPWD. According to the respondents, in the circumstances of the case there was no discrimination at all. Reliance has been placed on the decision of the Supreme Court in C.R. Seshan v. State of Maharashtra : and Union of India v. S. Sundrarajan : . It was said that the Public Works Department is a large organization with a small promotional channel for junior engineers and therefore intermediate scales had been granted. It was submitted that the consideration of comparable workloads by the Tribunal was not in connection with the issue of parity but in connection with the additional pay granted.
19. The impugned decision of the Tribunal as well as the submissions of the respondents are unsustainable.
20. In the meticulous and unchallenged decision of the Tribunal on the first application (O.A. No. 757 of 1988) on 11th May 1990 the Tribunal had considered all aspects of the matter including the promotional avenues available to Junior Engineers in the two departments in directing the Junior Engineers FBP to be granted the same pay scales as Junior Engineers, CPWD. The issue of penalty was thus res-judlcata [Vide Raja Jagannath Box Singh v. State of Uttar Pradesh and Anr. : ] and it was not open to the Tribunal by the impugned decision to re-examine the question unless there was a subsequent development in the situation.
21. In the affidavit in opposition the reason given for making a distinction between the Junior Engineers, CPWD and Junior Engineers FBP was that
“The percentage of promotion in ratio of 75:25 regarding introduction of the scale of pay of Rs. 1640-2900 and Rs. 1400-2300 was not accepted by the Junior Engineer of CPWD and the same could not be introduced due to their internal problem but so far as the Farakka Barrage Project is concerned the same ratio being accepted by the association of the junior Engineers the Farakka Barrage Project Administration introduced the same in terms of the decision of this Hon’ble Tribunal in O.A. No. 757/88 and as such any subsequent development of 100% promotion as introduced In CPWD cannot be claimed by the applicants at this stage.”
22. The mere non-acceptance of the pay scales recommended by the Fourth Pay Commission by the Junior Engineers, CPWD cannot be a rational ground for treating the petitioners differently, particularly when the petitioners had from the very outset demanded the benefit of any pay scale made available to the Junior Engineers.
23. Besides the reason given by the respondents in their affidavit is different from the one put forward in their argument before us, viz that chances of promotion for Junior Engineers in the CPWD were less than those in FBP. This was also the reason given by the Central Government in the letter dated 6th July 1994.
24. The reasoning is specious. It is not the case of the respondents that there has been a situational change in the promotional pattern subsequent to the Tribunal’s decision on 11th May 1990.
25. In fact according to the petitioners in real terms, Junior Engineers FBP had smaller chances of promotion than Junior Engineers, CPWD. According to them the sanctioned strengths of the Cadre of Junior Engineers CPWD. and FBP are 4883 and 122 respectively. The sanctioned strength of promotional posts in the CPWD was 2292 i.e. 46.94% of the total strengths whereas the number of promotional posts in FBP were only 22 i.e. 18% of the total strength of Junior Engineers.
26. The Tribunals finding that the grant of the revised scale to the Junior Engineers CPWD was a subsequent development by reason whereof the Junior Engineers could not claim parity is incomprehensible. That was the very issue which was to be determined by the Tribunal. There was as such no justification for the Tribunal in the impugned decision to hold that there was any “subsequent development” justifying deviation from the first decision of the Tribunal on 11.5.90.
27. The decisions cited by the respondents are inapposite. In C.R. Seshan v. State of Maharashtra (supra) it was held that a higher pay-scale granted on the basis of seniority-cum-merit was not arbitrary. Therefore where some Personal Assistants were made Private Secretaries on the basis of seniority-cum-merit, it was held that there was sufficient Justification for giving higher pay scale of such Private Secretaries. There is no such basis justifying discrimination between the two groups of Junior Engineers at all. Incidentally the revised pay scales have been admittedly extended to Junior Engineers of other departments.
28. In Union of India v. E.S. Sundarajan (supra) several commercial clerks became Assistant Station Masters (ASM) under what was called a “New Deal”. They enjoyed certain benefits on this score. After some time it was found that some commercial clerks who continued as such and who had not opted for the new deal were getting higher pay. The erstwhile commercial clerks who had opted to became ASMs under the “new deal” claimed parity of pay with the commercial clerks. The High Court allowed such parity. The Supreme Court disagreed with the ultimate relief granted by the High Court. It was said that
“…… there cannot be a case of discrimination merely because fortuitous
circumstances arising out of some peculiar developments or situations
create advantages or disadvantages for one group or the other although in the earlier stages they were, more or less, alike. If one class has not been singled out for special treatment, the mere circumstance of advantages accruing to one or the other cannot result in breach of Article 14 of the Constitution.”
29. As already observed, there is no new situational change or peculiar development nor any extra qualification obtained by the Junior Engineers, CPWD subsequent to the decision of the Tribunal’s first decision on 11th May 1990.
30. An argument similar to the one sought to be put forward by the respondents before us was considered and negatived by the Supreme Court
in Employees of Tannery & Footware Corporation of India Limited v. Union of India & Ors. : by holding :
“Here we are not concerned with equation of posts because the posts falling in the above mentioned four categories of employees in the respondent corporation as well as the Cotton Corporation of India are of the same level and employees working on these posts were having the same pay-scales In 1970. There is nothing on record to show that after 1970 there has been any change in the duties and functions of the persons holding these posts in the two corporations which may justify fixation of different pay-scales for these posts in the two Corporations.’
31. For the reasons stated we set aside the impugned decision of the Tribunal dated 30th April 1987 as well as the orders dated 8th September 1994 and 6th July 1994 and direct the respondents to implement the order of the Tribunal dated 11th May 1990 and revise the pay scale of the petitioners keeping in view the pay scales and the allowances enjoyed by the Junior Engineers CPWD. The revision should be made within a period of three months and the arrears found payable as a result of such revision be paid to the petitioners within three months of such revision. There will be no order as to costs.
D. P. Kundu, J.
32. I agree.
33. Appeal allowed