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PETITIONER: INDIAN COUNCIL OF AGRICULTURAL RESEARCH

       Vs.

RESPONDENT: A.N.LAHIRI

DATE OF JUDGMENT:       11/04/1997

BENCH: S.B. MAJUMDAR, M. JAGANNADHA RAO.

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T S.B.Majmudar, J.      Indian Council  of Agricultural  Research  (‘ICAR’  for short)  though its Director General has moved this appeal on special leave  against the  judgment and  order rendered  by Central Administrative  Tribunal, Jodhpur  Bench, Jodhpur in Original Application  filed by  the  respondent  herein.  In order to  appreciate the  grievance of  the appellant  a few introductory facts are required to be noted at the outset.      The respondent  was initially  selected  by  the  Union Public Service Commission on the post of plant phvsionlogist in the  year 1960  and accordingly  joined the  Agricultural Department of  Government of  India on  1st October  1960 at Central Arid  Zone Research Institute.Jodhpur, Rajasthan. On 6th March  1967 the respondent opted for the service of ICAR and he was absorbed in its service and was given substantive appointment with effect from 1st December 1966. On 9th April 1975 the  respondent was  selected for  the post  of Head of Division of  Soil Water  Relationship which was subsequently reorganized and  re-designated as Division of Arable copying System. Respondent was given a time scale of Rs.1800-2000/-.      In the  year 1975  ICAR restructured  its services  and constituted a service known as Agricultural Research Service (‘ARS’ FOR  SHORT) This  service was constituted with effect from  1st   October  1975   and  the  rules  regulating  the constitution  of   the  service  were  also  framed  by  the appellant. It  is the  case of the ICAR that pursuant to the formation of  ARS  the  scientists  working  under  it  were required to  furnish bio-data  for induction in ARS and that the  respondent   didn’t  furnish  his  bio-data  till  30th September 1980,  the last  date for submitting the bio-data, in response  to guidelines  of ICAR  as a result of which he was not  considered for  induction onto  ARS.  That  on  8th December 1976  respondent submitted  a representation to the Director General,  ICAR  to  grant  him  next  higher  grade namely, Rs.1800-2250/-.  According to the ICAR the induction into the  ARS was  a one  time operation  and was to be done strictly in  accordance with  the prescribed  procedure laid down for  this purpose.  Under the Rules the prescribed time limit was  30th September  1980. In  the  ARS  induction  of

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scientists was to be effected in the appropriate time scales available in  ARS. That  for the scientists holding posts in the scales  for Rs.1500-1800/- Rs.1500-2000/- Rs.1500-2000/- and RS.1800-2000/-  only one grade of S-3 of Rs.1500 -2000/- was available  for induction. According to the appellant the respondent was  not willing  to be absorbed in S-3 grade but wanted induction  in S-4  grade in  the scale  of Rs.  1800- 2250/-. Result  was that  respondent  remained  outside  the purview of  ARS. In  the meantime an order came to be passed by President  of ICAR  on  16th  July  1985  continuing  the respondent on  a permanent  basis in ICAR excluding his post from  ARS.   The  said  order  was  not  challenged  by  the respondent  at   any  time   thereafter.  It   appears  that subsequently when  UGC pay  scales were  introduced for  ARS scientists holding  different grades  from  S  to  S-3,  the respondent who  was all throughout continuing as Head of the Department had  Second thought  and submitted  his option on 20th August 1988   who was all through out  for induction in ARS. The  ICAR by  an order dated 9th March 1989 adopted UGC pay Scales  the ARS,  scientists with  effect from 1.1.86 as per  the  decision  of  the  Government  of  India.  As  the respondent was  outside the  ARS he did not get this benefit of UGC  pay scales. The respondent’s contention was that the should be  deemed to  be absorbed  in ARS  even on  the then existing S-3  pay scale which got revised upwards as per UGC pay  scales  to  Rs.  4500-7300/-.  As  this  was  not  made avialable by  the ICAR  to him  he moved  the Tribunal by an application. The Said application, as noted earlier, came to be granted  by the  Tribunal by  the impugned order which is challenged by the appellant in this appeal.      Learned counsel  appearing for the appellant vehemently submitted that  respondent according to his calculations and in his  own wisdom thought it fit to remain outside ARS when it was  introduced in  1975 as  he would  have been inducted only as  scientist in  the maximum  scale of  S-3 which  was RS.1500-2000/- in  those days. Respondent was already in the pay scale  of Rs.1800-2000/-  in ICAR  itself and  was  also enjoying the  Position of Head of the Department. However if he would have joined ARS as per the Scheme applicable to ARS he would  have been required to give up headship by rotation as prescribed  by rules  which he  was not willing to do. He also insisted  that he should be inducted in ARS in the time scale available  to S-4 scientists which was not permissible as per  the scheme.  Accordingly he remained outside ARS and that is  the reason why he did not challenge the order dated 16th  July   1985.  Consequently  when  pay  scales  of  S-3 scientists in  ARS were  enhanced by adopting UGC pay scales with effect  from 1.1.86  respondent obviously could not get the benefit thereof being outside ARS. That he could not get best of both the words, namely, to get permanent headship by remaining outside  ARS    and  still  claim  the  pay  scale available to  scientists in  ARS. Therefore,  his claim  for getting UGC   pay  scales of  Rs.4500-7300/-  was  obviously untenable.  That   when  he  remained  outside  the  ARS  he ultimately got  escalation of pay scales when made available to Central  Government employees as per the IVth Central Pay Commission  Report,   namely,  Rs.4100-5300/-  and  when  he retired from  service in  1996 he  was  rightly  allowed  to retire in  the said  time scale.  It was next contended that the Tribunal  was in  error in  taking the  view that on the principle of  Equal   pay for  Equal Work the respondent was entitled to  get the time scale of Rs. 4500-7300/- available to  ARS  scientists  as  the  respondent  was  not  in  that category.      Learned counsel  for the  respondent on  the other hand

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submitted that  when the  ICAR service  was restructured  in 1975 all the ICAR employees automatically got absorbed. That there was  no provision  for an ICAR employee to opt out for absorption. Absorption was automatic and that the respondent was  never   informed  at   any  time  thereafter  that  his absorption was  granted so  as to  enable the  respondent to exercise his option of not being absorbed, within six months of the  decision of  the Board  to  absorb  him.  That  even otherwise under  the scheme  the respondent  could  opt  for being absorbed  even  later  on  in  ARS  and  that  is  how respondent had  opted for  ARS in  1988. That even though he might have asked for a higher pay scale of S-4 scientists as per ARS scheme he would be deemed to be absorbed at least in pay scale  of S-3  scientists and once that happened the UGC pay scales  made applicable  to escalated  pay scale  of S-3 scientists  would  automatically  become  available  to  the respondent. He,  next submitted  that the  order of 1985 was clearly unauthorised  and incompetent.  In any  case on  the principle of  Equal pay  for Equal  Work the  respondent was rightly held  entitled to  the pay  scale  of  Rs.4500-7300. Learned counsel  for the  respondent further  submitted that respondent has  already retired  in 1996 and on the peculiar facts of  this case, therefore, this court may not interfere under Article 196 of the Constitution of India.      We have  given our anxious consideration to these rival contentions.  So   far  as   the  question  of  respondent’s absorption in  ARS is  concerned, on  a close  look  of  the scheme of  restructuring the  erstwhile service  of ICAR  it appears  to   us  that  absorption  of  the  erstwhile  ICAR candidates was  automatic. All  the ICAR’s candidates had to be considered  for initial  constitution   of the  Cadres in ARS. Our  attention was  invited to  the contents of the New Personnel policy  adopted by  ICAR.  Referring  to  the  New personnel Policy  it was  stated in the scheme that the ICAR had restructured  its personnel  policies  towards  all  the categories   of   the   staff   -   scientific,   technical, administrative and  supporting. For the scientific staff, an Agricultural Research  Service was  started on  2nd  October 1975. The composition of services included all the posts the incumbents of  which were  engaged in  agricultural research and education  (including extension  education).  All  these posts had been grouped under various disciplines the details of which had been given in Appendix I to the Scheme. When we turn to  Appendix I  we find  listed various disciplines for the purpose of recruitment to the ARS. The grades of service were  to  consist  of  Scientist  (s),  Scientist  1  (S-1), Scientist 2  (S-2) and  Scientist 3  (S-3). The highest time scale was available to the cadre of S-3, i.e., Rs.1500-2000. About the  initial constitution  of ARS  it was mentioned in the scheme  that the  service had been initially constituted with effect  from  1st  October  1975  out  of  the  regular employees of  the  ICAR  who  were  found  of  eligible  and suitable  by   Agricultural  Scientists  Recruitment  Board. Dealing with  initial constitution  of the  Service, namely, ARS it  was provided that the existing employees of the ICAR holding scientific  and technical  posts on  the date of the constitution of  the service,  i.e., 1st  October 1975    on regular  basis   and  satisfying  the  other  conditions  of eligibility were  to be    treated  as  eligible  for  being inducted in  the service. Screening for  induction was to be done by the Board. Persons who were not absorbed at the time of initial  constitution of  the service could be considered again for  appointment to  the service at a subsequent stage or stages.  Any person  who did not desire to be absorbed in the service could continue to hold the position already held

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by him provided that he informed the ICAR accordingly within a period  of six  months from  the date of his selection for induction into  the service. Dealing with Heads of Divisions in the Institutes it was provided That the posts of Heads of Divisions in the Institutes could be filled by rotation from amongst the  professors in  the Divisions  or  other  senior scientists in  the Scales of pay of Rs.1500-2000 or Rs.1800- 2000. The  suitable guidelines  were being  evolved for  the purpose. Appendix  II to the scheme dealt with service rules for ARS. ‘Council’s candidates’ were defined by Rule 2(i) to mean, ‘persons  specified in  Schedule  I  on  the  date  of constitution of  the Service’.  When we  turn to  schedule I framed in  the light  of Rule 2 we find Council’s candidates to be  considered for  initial constitution  of  this  cadre being those  who are employed on the date of sanction of the service on regular basis amongst others.      In the  light of  the aforesaid salient features of the restructured scheme  ARS, it,  therefore, becomes clear that all existing   ‘council’s  candidates’  working  on  regular basis as scientists became eligible for automatic absorption and if  on screening  absorption was  refused on  any ground such  unabsorbed   persons  also  could  be  considered  for appointment to the service at a subsequent stage. Therefore, there was no question of the respondent initially opting for the service.  The only option which he had was to opt out of the service once he was originally absorbed. learned counsel for the  respondent was  right when  he contended that there was nothing  on the  record to  show that  at any  time  the appellant had  informed the respondent that he was not found eligible for  absorption. Accordingly  we may proceed on the basis that  initially when ARS Was introduced on 2nd October 1975 the  respondent became  entitled to  be absorbed as S-3 scientist as  there was  no higher  scale of  S-4  grade  of scientists in  the time  scale of Rs.1800-2250 was available for research  management positions  only and  those who were eligible for  S-4 grade  onwards were only six categories of Scientists,   namely,   (i)   Director-General,   (ii)   Dy. Directors-General,(iii) Directors  of the  Institutes,  (iv) Project Directors,  (v) Joint  Directors,  and  (vi)  Asstt. Directors   General. Respondent  admittedly did  not fall in any of  these categories.  Therefore, he could not have been inducted in  the time  scale of  S-4 scientists.  In view of these circumstances  despite  the  automatic  absorption  of respondent in  S-3 grade  from 1st  October 1975  it appears that  respondent   was  not   willing  to  accept  the  said absorption in  S-3 grade  and  insisted  for  induction  and absorption in  S-4 grade.  That is clear from his own letter dated 7th  February 1979  which he addressed to the Director General  of  the  ICAR.  The  following  averments  made  by respondent  in   the  aforesaid   communication  speak   for themselves. They read as under :      "However,  we   are   also   deeply      concerned    about    the    future      developments of an unresolved issue      which was  receiving your  kind and      sympathetic   consideration.   This      issue relates  to the  revision  of      the pay scale of Head of Divisions,      presently in  the grade of Rs.1800-      2000   to   Rs.1800-100-2000-125/2-      2250.      Although I  have not heard anything      specific regarding  the development      of this  case,  i  understand  that      this  proposal  may  be  acceptable

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    provided it  becomes operative from      October 1, 1975. In this connection      i  have   to  submit   that  I   am      agreeable to accept the revision of      the pay  scale from this date under      my existing terms of appointment."      The aforesaid  communication by  respondent  leaves  no room for doubt that he was not willing to be absorbed in the pay scale  of Rs.1800-2000  meaning thereby S-3 grade in ARS and he wanted induction in S-4 pay scale of Rs.1800-2250. As we have  seen above under the scheme such a higher pay scale was not  available to  the respondent  for being inducted in ARS. Consequently  even accepting  the contention of learned counsel for  the  respondent  that  he  stood  automatically absorbed on 2nd October 1975 as scientist S-3 in ARS, by his own volition  he exercised  his option not to be absorbed as scientist of  S-3 grade  of ARS.  Learned  counsel  for  the respondent submitted  that he only wanted a higher pay scale but it  would not  amount to  his opting out of ARS  Once he was automatically  absorbed therein.   It is not possible to agree with  this contention  of the  learned counsel for the respondent. Respondent  was already  Head of  the Department and  he  made  it  clear  in  so  many  terms  in  the  said communication dated  7th February 1979 that he was agreeable to the  revision of  pay scale  as suggested  by him meaning thereby short of that he was not willing to accept lower pay scale of  Rs.1500-2000. The  reason was obvious. He was also Head of  the Department.  Thus there was no economic gain to him by  accepting a  lower time  scale  of  Rs.1500-2000  by getting inducted  as S-3 grade scientist in ARS which would, apart from not bringing him any monetary gain, result in his losing the  post of Head of the Department as by rotation he would have been required to vacate the same if he had joined ARS  as  S-3  grade  scientist.  Therefore,  his  stand  was justified in  not being  absorbed  in ARS in those days. Not only that  because of  his insistence  the president of ICAR order dated  16th July  1985 treated respondent to be out of ARS and  made him  permanent as Head of the Department on an independent pay  scale in  ICAR. It is not possible to agree with the  contention of  learned counsel  for the respondent that the  said order  was incompetent.  Respondent  had  not thought it  fit to  challenge the  said order at any time on that ground.  Not only  that but  he  accepted  the  benefit flowing out  of the  said order by remaining outside ARS and enjoying the headship of the Department on a permanent basis till he  retired in  1996. Consequently it must be held that the respondent  on his own volition had remained out of ARS. Consequently the  subsequent escalation of the pay scales of ARS  scientists under UGC pay scales with effect from 1.1.86 could not have been automatically earned by the respondent.      On the  aforesaid conclusion  of  ours  the  respondent would ex  facie appear  to lose his battle. However there is one silver  lining to the dark cloud which otherwise engulfs the respondent’s  case an  that silver lining is highlighted by the Tribunal and which in our view stands well sustained. We may now advert to the said aspect of the matter.      The  Tribunal   has  held   that  the  work  which  the respondent was  doing as a scientist was of the same type as was being carried out by scientists who had been inducted in the ARS. Not only that his juniors who were actually working under him, as he was the Head of the Department, and who had joined ARS  got the  benefit of higher pay scale of Rs.4500- 7300. The  nature of  work which  they were doing was of the same type  as was  done by  their Head  of  the  Department. Qualification wise  there was no distinction between the two

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sets of  employees. Their  initial source of recruitment was also the  same. Their initial source of recruitment was also the same. Their employer was also the same, namely, ICAR. It is the  same employer  who had  two sets  of employees,  one governed by  ARS system  of service  and the others who were outside ARS  but still very much doing the same type of work as scientists and belonging to the same institution, namely, ICAAR, of course forming a separate wing of employees. Under these circumstances,  therefore, the  doctrine of  Equal pay for Equal  work got  squarely attracted  . The conclusion to which the Tribunal reached on this aspect, therefore, cannot be faulted  from any angle. Not only that but in the case of one Dr.  Gupta who  also was  a scientist  working under the ICAR and  who was  outside ARS was directed to be given same pay scale  of Rs.4500-7300  as was  made  available  to  ARS scientists by  decisions of  this Court  in the  case of Dr. Y.P.Gupta V.  Union of  India &  Ors. (1984) 2SCC 141. Under these circumstances,  therefore, it  could not  be said that the Tribunal  had  committed  any  error  in  directing  the appellant to  make the  same  pay  scale  of  Rs.  4500-7300 available to  the respondent  as was  made  available  to  a similarly situated  employee like  Dr. Gupta  who was almost equally circumscribed  as the  respondent and although being out of  ARS was still held entitled as per this court to the same escalated  time scale  of Rs4500--7300  which was  made available to  ARS scientists.  it is also to be kept in view that the respondent has already retired from service and his is almost  an  isolated  case.  under  these  circumstances, without treating this case as a precedent we deem it fit not to   interfere with  the order of the Tribunal under Article 136  of the constitution of India.      For all these reasons, therefore, this appeal fails and stands dismissed.  Interim stay  granted earlier by an order of this  Court dated  30th August  1994 shall stand vacated. The appellant  shall work  out  all  the  monetary  benefits available to  the respondent  pursuant to  the order  of the Tribunal as  confirmed by  us and make them available to the respondent preferably  within a  period of  four months from the date  of receipt  of a copy of this order at its end. In the facts  and circumstances  of the  case there  will be no order as to costs.