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CASE NO.: Appeal (civil)  2468-2469 of 2005

PETITIONER: UNION OF INDIA

RESPONDENT: ARUN JYOTI KUNDU & ORS

DATE OF JUDGMENT: 27/08/2007

BENCH: H.K. SEMA & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  

P.K. BALASUBRAMANYAN, J.

               Intervention allowed.  Heard learned counsel on all  sides.   

1.              These appeals by the Union of India challenge the  decision of the High Court of Calcutta dismissing the writ  petitions filed by it challenging the decision of the Central  Administrative Tribunal, Calcutta Bench, in applications  filed by employees of Railways in typist cadre.  The claim of  the employees was for the issue of a direction to the  appellant to sanction the same scales of pay to them as are  applicable to senior clerks, head clerks and Office  Superintendents Grade II with effect from 1.1.1996 and for  directing payment of the arrears on that basis.  The Central  Administrative Tribunal had upheld that claim.  That was  challenged in the High Court, but the High Court repulsed  the challenge.   

2.              Claim before the Tribunal was made on the basis  that the scales of pay of the respondents herein, working as  typists in the Eastern Railways is at par with that of Lower  Division Clerks.  The Fifth Pay Commission had  recommended that typists should be treated at par with  clerks and hence the typists have a legitimate right to claim  pay at scales enjoyed by Senior Clerks, Head Clerks and  Overseers Grade II in respect of the posts of Senior Typists,  Head Typists and daily typists respectively.  Instead of  implementing the recommendations of the Fifth Pay  Commission, the appellants have fixed the pay of the  respondents at lower scale.  When typists were at par with  the ministerial staff in the matter of promotion, there was no  justification for not treating Senior Typist, Head Typist and  the Chief Typist at par with Senior Clerk, Head Clerk and  Overseer Grade II.  The claim was opposed by the Union of  India by pointing out that the recommendations of the Fifth  Pay Commission regarding pay had been duly implemented  to the extent accepted but that the cadre of typists had not  been merged in the cadre of clerks.  When a grievance was  put forward, the question was examined by the Anomaly  Committee and in respect of English Typists and Hindi  Language Typists, relief was granted with effect from  31.1.2000 that it was not within the purview of the Central

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Administrative Tribunal to re-fix the pay scales or to issue  directions to merge the cadre as sought for by the  respondents and that the applications were liable to be  dismissed.

3.              The Central Administrative Tribunal brushed  aside the objections of the Union of India regarding its  jurisdiction, its authority to issue a direction to merge the  cadres and the propriety in its undertaking the fixation of  pay scales in the light of the decisions of this Court and  proceeded to grant relief to the respondents by directing that  the English language and Hindi language typists be given the  same pay scales as applicable to Senior Clerks, Head Clerks  and Office Superintendents with effect from 1.1.1996 and  that the arrears be paid on that basis within the time fixed.   The Tribunal in O.A. 12 of 1999 also directed the appellants  to give the benefit of the same scales to all typists as are  applicable to Senior Clerks, Head Clerks, Office  Superintendents Grade II as contained in the order dated  16.10.1997 with effect from 1.1.1996.  Feeling aggrieved by  these directions, the Union of India filed the writ petitions  before the Calcutta High Court reiterating its contentions.   The Division Bench overruled the contentions of the Union of  India and dismissed the writ petitions.  The Union of India  has thereupon come up with these appeals by special leave.

4.              The Fifth Central Pay Commission had gone into  the pay scales of various categories of employees in the  Railways also.  The Pay Commission had generally  recommended equivalent revised scales of pay for the  existing scales of pay except where it had thought it  necessary to effect improvement on the basis of recruitment  qualifications, nature of work and so on.  On the  recommendations of the Fifth Pay Commission the  Government of India had revised the scales of pay of its  employees with effect from 1.1.1996.  When certain  organizations of employees made complaints of alleged  anomalies in the revised pay scales, the Government of India  had constituted Anomalies Committees at the national and  departmental levels.   The typists in the Railways had also  complained of certain anomalies and those grievances were  considered by the Departmental Anomalies Committee.   On  the basis of the report of the Anomalies Committee, typists in  English and Hindi language were given relief but with effect  from 31.1.2000.  It is being dissatisfied with this that the  typists approached the Central Administrative Tribunal,  Calcutta.

5.                      According to the Union of India, the Railway  establishment has been separately dealt with by the Fifth  Central Pay Commission which had made specific  recommendations for the cadre of ministerial staff of  Railways.  They are contained in paragraph 83.225 of the  Report.  It is the further case of the Union of India that the  Pay Commission had not made any specific recommendation  for the category of typists in Railways while dealing with  them.  Under paragraph 83.296 of its Report, the Pay  Commission has stated that all posts in Organizations other  than those specifically discussed are in standard scales of  pay and they may be placed in corresponding replacement  scales of pay.  Therefore, based on that recommendation  typists in the Railways have been allowed standard  replacement pay scales.

6.              Learned Senior Counsel appearing on behalf of the

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appellant contended that the cadre of typists and the cadre  of clerks in the Railways are distinct with distinct duties.  A  conscious decision was taken not to merge the two cadres.  A  limited decision was taken to reduce the number of posts on  the lowest rung at the typist cadre and the posts so reduced  were to correspondingly increase the strength of the cadre of  clerks.  The decision was that there was to be no merger.   The Fifth Pay Commission, while dealing with the Ministry of  Railways had dealt with its clerical staff at paragraph 83.220  and 83.225.  In paragraph 83.220 the Pay Commission dealt  with the pay structure of the Ministerial Staff of Railways,  subordinate staff and recommended the various pay scales.   In paragraph 83.225 it dealt with the Ministerial Staff and  officers other than subordinate officers and recommended a  pay structure for them.  In paragraph 83.296 it was  recommended that all posts in organizations under the  Ministry other than those specifically discussed by the Pay  Commission in the concerned Chapter are in standard scales  of pay and they may be placed in the corresponding  replacement scales of pay recommended by it.  According to  the appellant all the relevant aspects were taken note of by  the expert body, the Fifth Pay Commission and it had dealt  separately with the Ministry of Railways.  But it has  deliberately chosen not to comment on the pay structure of  the different hierarchies of typists and had left their pay  scales to be determined in terms of the standard scales of  pay as provided in paragraph 83.296.  It is, therefore, the  submission on behalf of the appellant that the Commission  had taken a conscious decision to deal differently with the  cadre of typists and the cadre of clerks and hence the typists  cannot claim the benefits which were not given to them by  the Fifth Pay Commission.  The fact that they were enjoying  the same pay scales before the Fifth Pay Commission\022s  recommendations would not make any difference in the light  of the recommendations of the Fifth Pay Commission.  If  parity, as claimed is to be given, it would amount re-writing  the report of the Pay Commission.  The Central  Administrative Tribunal and the High Court had done this by  granting the reliefs claimed and consequently they have  acted outside their jurisdiction while exercising the power of  judicial review.  A mandamus has been issued to merge the  cadre  so to say; that is not permissible.  It is pointed out  that the peculiar facts of the services in the Railways had  been specifically taken note of by the Fifth Pay Commission  and the Commission had observed that they had considered  the pay structure of ministerial staff for the Railways in the  context of all pattern of subordinate officers and pay  structure in different railway categories and pay structure of  different categories where graduates were inducted into the  cadre.  It was also submitted that a conscious decision was  taken with a view to grant higher pay scale because one third  of the strength of senior clerks was that of directly recruited  graduates and a higher pay scale has been given to them on  the basis of educational qualifications.  The recommendation  in paragraph 83.296 was also made by the Commission  based on its appreciation of all the relevant circumstances  relating the service in Railways.

7.              It is contended on behalf of the respondents and  interveners that the Fifth Pay Commission had found that 26  categories of employees were common in various ministries  and organizations under the Government and they are listed  in the Report.  The matter of fixation of pay scales in respect  of those 26 common categories like accountant and typists  etc. were considered in Chapter 55.  In respect of language

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typists the Pay Commission had recommended that language  typists can be divided into four categories, typists in English  language typists, Hindi language typists, typists in Indian  languages other than Hindi and English and typists in  foreign languages.  Typists in English and Hindi language  form part of the general cadre of an orgnisation.  They are  treated at par in the matter of pay scales, promotional  avenues etc.  as per paragraph 55.152 of the Report.  It is  the further contention that the recommendations in respect  of pay scales for clerical cadre in the Railways is contained in  paragraph 83.225 and after considering the relevant aspects,  a pay structure for the Ministerial staff was specifically  recommended.  In paragraph 83.295 it was stated that  recommendations of common categories like EDP staff,  typing staff, official language and canteen staff had been  made in the Chapter on common categories.  It is, therefore,  the case of the respondents that on a combined reading of  the above paragraphs it can be seen that the language  typists are entitled to the same pay scales as have been  recommended by the Fifth Pay Commission in respect of the  clerical cadre.  No separate recommendation was made in  view of the fact that the matter was specifically covered  under the common categories.  It is the submission on behalf  of the respondents that paragraph 83.296 does not have  application because that dealt only with the categories of  employees whose cases have not been dealt with either under  common  categories in Chapter 55 or under specific  categories in paragraph 83.1 to 83.295.

8.              In answer, it is pointed out on behalf of the  appellant that paragraph 83.295 has no relevance.   Paragraph 55.152 relied on was only a recommendation with  regard to typists in the pay scale of Rs.950-1500 and this  was clear from the statement \023as such we recommend that  the posts of language typists be merged with the clerical  cadres of the respective organizations/central graduates  clerical, service in the case of central graduates in the pay  scale of Rs.950-1500.   This will ensure adequate  promotional opportunities for those typists.\024  It is also  pointed out that paragraph 55.154 dealt with official  language typists and it was noticed that the posts were very  few and there was scarcity of staffs.  Since the candidates  are required to possess higher qualifications it was  recommended that they should form a separate and distinct  category entitled to better remuneration.  It was, therefore,  recommended that direct entry in their case may be made in  the pay scale of Rs.1320-2040.    According to the appellant,  from the above it is apparent that the specific  recommendation was with regard to language typists in the  pay scale of Rs.950-1500, there was a specific  recommendation to merge them with the clerical staff of  respective organizations, there was no recommendation vis- ‘-vis typists in other pay scales in paragraph 55.154 which  dealt with the higher qualification and, therefore, it is a case  where paragraph 83.296 squarely applies and all that the  typists are entitled to are corresponding replacement pay  scales recommended by the Fifth Pay Commission.  We find  considerable force in the contention of learned counsel for  the appellant that the plea that categories other than  categories of Rs.950-1500 are also required to be merged or  are required to be given the same treatment is not borne out  and that the recommendation is limited to the language  typists in the scale of Rs.950-1500.  When there is a specific  chapter dealing with the Ministry of Railways, the general  recommendation regarding typists in the limited pay scale of

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Rs.950-1500 could not straight away be made applicable to  other pay scales and even if there was any recommendation  for merger, so long as the same has not been accepted it may  not be appropriate for the tribunal or the court to issue a  direction in that regard.   

9.              We had recently held in K. S. Krishnaswamy Vs.  Union of India & Anr. [JT 2006 (10) 479] that the  recommendations of Pay Commissions are subject to  acceptance or rejection.  Speaking for the Bench, one of us  (H.K. Sema, J.)  stated:  

\023It is well settled principle of law that  recommendations of the Pay Commission are  subject to the acceptance/rejection with  modifications of the appropriate Government.\024

So, unless the Government has accepted the  recommendation to merge the cadres, the Court cannot  proceed on the basis of the recommendation alone or to  direct the Government to accept the recommendation.   In  this context we have also to take note of the decisions of this  Court in Dev Kumar Mukherjee (1995 Suppl. (2) SCC 640)  that the recommendations of pay scales are not open to  judicial review and the one in State of Uttar Pradesh vs.  Ministerial Karamchari Sangh (1998 (1) SCC 422) to the  effect that the evaluation of typists for the purposes of pay  scales must be left to the expert body.  The role of the Pay  Commission and that of the court has also been dealt  by the  decision of this Court in Saurabh Chaudri and others vs.  Union of India and others (2003 (9) SCALE 272) and M.P.  Rural Agricultural Officer Association vs. State of M.P.  (2004 (4) SCC 646).      In the latter decision it was held by  this Court that pay commissions are constituted for  evaluating duties and functions of the employees and the  nature thereof vis-‘-vis the educational qualifications  therefor.  Although the pay commission is an expert body,  the State in its wisdom and in furtherance of its valid policy  may or may not accept its recommendations.   

10.             On going through the relevant paragraphs of the  Report of the Fifth Pay Commission in the light of the  arguments raised before us, we are of the view that as far as  the staff in the Railway\022s is concerned, for whom no specific  provisions have been made, it would be paragraph 83.296  that would apply and if it is so, the pay scale of the typists  not specifically dealt with would be corresponding  replacement scale of pay.  The specific direction in paragraph  55.152 relied on by the respondents applies only to typists in  the scale of pay in Rs.950-1500 or it is confined to that  category only and the same cannot be extended and  paragraph 83.295 invoked to rope in others not fitting in  with that category.   

11.             Though the tribunal noticed the decision in State  of U.P. and others vs. J.P. Chaurasia and others (1989 (1)  SCC 121), it has proceeded on the footing that since the  Commission had recommended that the posts of language  typists be merged with the clerical cadre even though that  has not been done, a direction still could be issued for grant  of benefits of the same pay scales as are applicable to the  senior clerks, head clerks and office superintendents Grade  II, to the respondents with effect from 1.1.1996.  In this  context, the tribunal has also relied on the fact that on the  recommendation of the Anomalies Committee the appellants

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have accepted the demand of two sets of typists for grant of  higher set of pay scale equivalent to their counter parts in  the clerical cadre.  It has held that on the same analogy there  cannot be any justification to deny benefits to typists as a  whole.

12.             We are afraid that the tribunal has exceeded its  jurisdiction in issuing the direction, it has issued.  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  Hindi 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.  As this Court has clarified in  the decisions adverted to, it is for the Government to act on  the report of the Pay Commission or either to accept or not to  accept its recommendation.  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 given them the scale  with effect from 31.1.2000, it could not be held to be  discriminatory or to be beyond the power of the Government.   When a concession was being extended as distinct from  implementing a specific recommendation of the Pay  Commission with reference to a particular point of time, it is  open to the Government to provide that the benefit it  proposes to give, would be available only from a notified date.   As this Court has observed, neither the Central  Administrative Tribunal nor the High Court, can direct the  merger of any cadre.  That is a policy decision for the  Government to take.  So long as it is not done, it is not open  to the tribunal or the court to issue directions in that regard  and to follow it up with what are thought to be consequential  directions.

13.             We may in this context notice that the Central  Administrative Tribunal, Principal Bench, Delhi dealing with  a similar claim took up the position on the basis of decisions  of this Court, that the tribunal would have no jurisdiction to  issue the directions sought for by the employees.  It is  submitted that the correctness of the said decision has been  questioned in the High Court at Delhi.  Therefore, it is not  necessary for us to make any observation regarding that  decision.  But we note that, that tribunal declined  jurisdiction in similar circumstances.

14.             Once we find that 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, there would arise no  discrimination because the very implementation of the Fifth  Pay Commission Report would not entitle the respondents to  any benefit.  The very right to their benefit arose because of  the decision of the Government to extend to them a  particular benefit not specified in the Fifth Pay Commission  Report.  It is, therefore, not possible to postulate that the  decision of the Government must be given retrospective effect  and if no such effect is given, the tribunal or court can  interfere and direct the giving of such retrospective effect.   Once it is found that paragraph 83.296 is attracted to the  case, it has to be found that the applicants before the

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Tribunal were not entitled to any relief.

15.             We are, therefore, of the view that the Central  Administrative Tribunal has exceeded its jurisdiction in  issuing the directions it has issued and the High Court was  in error in not setting them aside.  We, therefore, allow these  appeals and setting aside the decision of the High Court and  that of the Central Administrative Tribunal dismiss the  original applications filed before the Central Administrative  Tribunal, Calcutta.  We direct the parties to suffer their  respective costs.