ORDER
Meera Chhibber, Member (J)
1. By this OA three applicants, who are Music Composers in Grade-IV, have sought a direction to the respondents to revise the Recruitment Rules in respect of Music Composers with a view to remove stagnation and introduce the multi-grade structure as available to Instrumentalists. They have also sought a direction to respondent No. 3 to implement the decision taken vide letter dated 14.8.1996 to remove the anomaly by stepping up the pay of Music Composers in accordance with FR 22 (1)(a)(1) revising the pay-scale of the applicants w.e.f. 1.1.1996
2. Their grievance is that even though the educational qualification required for Music Composers is higher than the Instrumentalists in All India Radio and Instrumentalists have to perform under the guidance and supervision of Music Composers, yet Instrumentalists are getting higher pay scale than them because of multi-grade pay structure made available to the Instrumentalists.
3. For recruitment to the post of Music Composers, there is a minimum educational qualification required with diploma/degree in Music and a minimum MAB gradation. Whereas for recruitment to the post of Instrumentalist, all that is required in a minimum MAB gradation. Their promotion is dependent on their gradation by MAB. The initial pay scale for a Music Composer and an Instrumentalist are the same i.e. Rs. 5500-9000 (revised). However, an Instrumentalist can get a higher pay scale at the time of appointment if he has a higher artistic grade from MAB. Thus a Grade-A instrumentalist can get appointed in the higher pay scale of Rs. 6500-10000. This is due to the multi-grade structure, which has not been made applicable to Music Composers.
4. Applicant No. 1 was appointed as Music Composer in July, 1990 in the scale of Rs. 550-1640. It was only in May, 2006 that his pay scale has been revised to Rs. 7500/- w.e.f. August, 2002 due to ACP. Applicant No. 2 has not been given any promotion or ACP since 26.7.1993 and is stagnating. Applicant No. 3 joined as Instrumentalist initially in the scale of Rs. 550-1640 later changed to Music Composer. He was given only one benefit of ACP in 1997. He did not get a single promotion and has retired on 31.12.2005.
5. There is scope for the Instrumentalist Grade-IV to be promoted to the next promotional post of Instrumentalist Grade-III within a short time by improving his grade in MAB. Thus an Instrumentalist, who joins as Instrumentalist Grade-IV, can be promoted to the post of Instrumentalist Grade-II within a span of 3 years whereas a Music Composer Grade-IV could stagnate in the same post for 20 years without getting a single promotion. As a result, Instrumentalists who are much junior to the Music Composers are drawing salaries much higher than them.
6. They have also submitted that a decision taken by the office of the respondent No. 3 way back in August, 1996 whereby it was decided that the responsibility and the duty of a Music Composer Grade-IV being higher than an Instrumentalist, pay in such appointment may be fixed under FR 22 (1)(a)(1), therefore, applicant No. 1 gave a representation to step up his pay but no reply thereto has been given, therefore, applicant had not other option but to file the present OA.
7. Counsel for the applicant relied on a judgment given by Hon’ble High Court of Delhi in the case of Bureau of Indian Standards v. Bureau of I.S. Employees Association decided on 24.11.2006 reported in 2007 (Feb) The Delhi Law Times 376 apart from judgment dated 9.10.2000 passed in OA No. 2153/1999 (page 19).
8. Respondents on the other hand have opposed this OA. They have submitted OA is barred by limitation.
9. On merits, they have submitted applicants cannot compare themselves with the Instrumentalist. It is humbly submitted that both are the Direct Recruitment Post and are having separate Recruitment Rules. The Instrumentalist are not subordinate to the Music Composer, therefore, no parity can be claimed. Even the duties and responsibilities of the Music Composers and Instrumentalists are all together different. Moreover, applicants have already been given the benefit of ACP, therefore, directions have already been implemented. They have further explained that the DPC can only be held if there is a post. However, if there is no promotional post available, then the employee is to be granted the benefits of the ACP Scheme, which has already been granted to the applicants. They have also stated that no one from the category of Instrumentalist has ever been promoted as Music Composer as both the posts are of direct recruitment quota and are having distinctive Recruitment Rules.
10. They have thus prayed that OA may be dismissed.
11. We have heard both the counsel and perused the pleadings as well.
12. Undisputedly, Instrumentalists and Music Composers are appointed under different set of Recruitment Rules. Their duties are different and Instrumentalists are not the feeder cadre for Music Composers, therefore, it would be wrong to state that Instrumentalists are junior to the applicants, who are Music Composers. It is stated by the applicants that Instrumentalists work under the guidance of Music Composers, therefore, their pay cannot be less than the Instrumentalists but no such evidence has been brought on record whereas this fact is disputed by the respondents, therefore, no positive finding can be recorded. In any case it is now too well settled by Hon’ble Supreme Court that it is not within the domain of Tribunal or Courts to decided equation of posts or equation of pay as this is the work of Expert Bodies like Pay Commission.
13. It would be relevant to refer to the following judgments of the Hon’ble Supreme Court. In State of U.P. and Ors. v. J.P. Chaurasia reported in AIR 1989 SC 19 Hon’ble Supreme Court held as under:
More often functions of two pots may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be 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.
In Union of India and Ors. v. Hiranmoy Sen and Ors. Hon’ble Supreme Court held as under:
Learned Counsel for the respondents submitted that the auditors and assistants have been historically treated on a par in the matter of pay scales. Although this fact has been denied by the appellant, we are of the opinion that even if it is correct, that will not be of any help to the respondents. To give an illustration, if post A and post B have been carrying the same pay scales, merely because the pay scale of a post A has been increased that by itself cannot result in increase in the pay scale of post B to the same level. It is entirely on the Government and the authorities to fix the pay scales and to decide whether the pay scale of a post B should be increased or not. The judiciary must exercise self-restraint and not encroach into the executive or legislative domain.
In S.C. Chandra v. State of Jharkhand it was held parity cannot be drawn unless there is complete and wholesale identity between the 2 groups and even there the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting the higher pay scale. In State of Haryana v. Haryana Civil Secretariat Personal Staff Association it was held as under:
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.
14. It is thus now settled position that these matters need to be examined by Expert Bodies and courts cannot decide the issues of parity. Now that 6th Pay Commission has already submitted its recommendations and Government is considering the same, we are sure in case applicants had raised this issue before the 6th Pay Commission, they would have considered this aspect also, therefore, at this stage we cannot entertain this case. It is better to await the outcome of 6th Pay Commission.
15. In view of above, OA stands disposed off. No order as to costs.