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Tribunal Order Summary — Original Applications Nos. 86/2006 & 449/2006

Factual and Procedural Background

Two Original Applications (OA No. 86/2006 and OA No. 449/2006) were decided by a single common order because they involved common questions of fact and law. The applicants are Sanitary Inspectors employed at the National Institute of Communicable Diseases (NICD). Historically they held the pay scale Rs. 4000-6000 and, by an Office Order dated 26.9.2000, were granted an upgraded pay scale of Rs. 5000-8000 effective from 1.1.1996. Separately, the Directorate General of Health Services (DGHS) upgraded pay for Sanitary Inspectors at PHOs/APHOs to Rs. 5500-9000 (referenced via a 29.11.2001 document).

By an order dated 2.1.2006 the respondents withdrew the upgraded scale of Rs. 5000-8000 and placed the applicants back in the Rs. 4000-6000 scale with effect from 1.1.2006. The applicants filed these Original Applications seeking (i) production of records culminating in the Office Order dated 26.9.2000 and the impugned Office Order dated 2.1.2006, (ii) quashing of the 2.1.2006 order, and (iii) restoration of the upgraded pay scale Rs. 5000-8000 w.e.f. 1.1.2006.

The respondents contested the OAs by explaining the administrative background: certain technical posts at NICD were upgraded with Ministry of Finance approval for some categories, other upgrades at NICD (including to Sanitary Inspectors) were applied without prior Ministry of Finance approval, and the Ministry of Health and Family Welfare directed a roll-back w.e.f. 1.1.2006 while ordering departmental inquiry and submission to an anomaly committee. The Tribunal heard submissions, considered authorities cited by the parties, and disposed of the OAs with directions and costs (each party to bear their own costs).

Legal Issues Presented

  1. Whether the applicants were entitled to the upgraded pay scale (Rs. 5000-8000) that they had been enjoying, and specifically whether they were entitled to be placed at pay scale parity with Sanitary Inspectors of PHOs/APHOs (Rs. 5500-9000).
  2. Whether the respondents could lawfully roll back the upgraded pay scale by order dated 2.1.2006 with retrospective effect from 1.1.2006 without issuing any show-cause notice to the affected employees.
  3. Whether the Tribunal should interfere with executive fixation or revision of pay scales in the circumstances of this case, given the established principles restraining judicial interference in pay-fixation matters.

Arguments of the Parties

Applicants' Arguments

  • The applicants had been granted and were enjoying the upgraded pay scale Rs. 5000-8000 w.e.f. 1.1.1996 (by an Office Order dated 26.9.2000) and the withdrawal by the impugned order dated 2.1.2006 is illegal.
  • The respondents' action in withdrawing the upgraded pay scale was arbitrary, discriminatory, violative of principles of natural justice, and was done without prior notice.
  • The applicants sought parity (a revised pay scale of Rs. 5500-9000) at par with Sanitary Inspectors working at PHOs/APHOs under DGHS, and contended their representations were not considered.
  • They asserted absence of any misrepresentation by them and emphasised the long period (over 10 years) during which they had been receiving the higher pay.

Respondents' Arguments

  • Certain technical pay scale revisions for NICD posts were made with approval of Ministry of Finance; upgrades for some posts were explicitly recommended by DGHS/MOH in earlier communications dated 22.2.2000 and related correspondence.
  • The cases of individual posts (including some upgrades) were to be dealt with at the end of NICD in light of DGHS letter dated 20.7.2000, and NICD had allowed certain higher scales on that basis; however, the Ministry of Health noticed that those upgrades in respect of Malaria Inspector/Filaria Inspector/Sanitary Inspector were made without formal approval of Ministry of Finance.
  • Accordingly, pursuant to a Ministry of Health & Family Welfare instruction dated 26.12.2005, the pay scale Rs. 5000-8000 for those cadres was rolled back w.e.f. 1.1.2006, with directions that recoveries for the prior period (1.1.1996 to 31.12.2005) not be made, departmental inquiry be held, and proposals be submitted to the anomaly committee of DOP&T; a reference to the 6th Pay Commission was also made.
  • Respondents stressed that parity in pay scales across organisations is not a right unless duties, responsibilities and recruitment rules are similar; NICD Sanitary Inspectors had different essential qualifications (e.g., matriculate + Sanitary Inspector course) compared to APHO/PHO Sanitary Inspectors (B.Sc. with Chemistry), justifying different scales.
  • Respondents relied on authorities cautioning tribunals against intervening in pay-fixation except in exceptional circumstances, and argued the Tribunal should be cautious in interfering with executive pay decisions.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Union of India v. P.V. Hariharan (CA 7127/1993) 1997 SCC (L&S) 38 Warning to Tribunals to refrain from routinely interfering with pay scales; fixation of pay is primarily an executive function (often on recommendations of Pay Commissions). The Tribunal noted this caution and recognised that interference with pay scales is a serious matter with cascading effects; the precedent supported judicial restraint in pay-fixation matters while permitting interference in exceptional cases.
Secretary, Finance Department v. West Bengal Registration Service Association, 1993 Supp (1) SCC 153; JT 1992 (2) SC 27 Parameters limiting judicial interference in pay-fixation: job evaluation and pay determination are primarily executive tasks; courts intervene only when there is cogent material of grave error or arbitrary state action. The Tribunal applied this principle to emphasise that while pay fixation is for the executive, the court/tribunal retains jurisdiction where there is arbitrary action or injustice; this framed the standard for deciding whether interference was warranted.
M.V.R. Rao v. Union of India, ATFBJ page 260 (Full Bench) Distinction between categories performing different jobs can justify different pay scales (example: Central Secretariat Staff vs. non-Central Secretariat Staff). The Tribunal relied on this principle to support the respondents' contention that parity is not automatic and that differing duties/working conditions may justify different pay scales.

Court's Reasoning and Analysis

The Tribunal reviewed the administrative history, the parties' submissions and the cited authorities. Key elements of the Tribunal's reasoning were:

  1. Specificity of original orders: The Tribunal observed that the orders upgrading pay scales at NICD were issued with clear directions that the upgraded scales were specific to the relevant posts at NICD and could not be extended elsewhere.
  2. Approval and irregularity: Some upgrades for technical categories had been approved by the Ministry of Finance; however, the extension of similar scales to Sanitary Inspectors appears to have been made without seeking or obtaining Ministry of Finance approval. The Secretary (Health) noticed this lack of approval and ordered a roll-back with effect from 1.1.2006 and an inquiry into the irregularity.
  3. No-recovery provision: The roll-back order expressly provided that recoveries for the prior period (1.1.1996 to 31.12.2005) were not to be made. The Tribunal held that this provision is consistent with Supreme Court rulings that payments made without misrepresentation by employees should not be recovered; this aspect of the roll-back order was upheld.
  4. Requirement of notice: The Tribunal relied on established law (as reflected in the cited Supreme Court authorities) that orders having civil consequences affecting rights of parties cannot be passed without putting affected parties on notice. The applicants had enjoyed the higher pay scale for over ten years and respondents did not allege misrepresentation by the applicants.
  5. Procedural infirmity and remedy: Because no show-cause notice was issued before the rollback order of 2.1.2006, the Tribunal found that the rollback (to the extent it retrospectively deprived applicants of the higher pay w.e.f. 1.1.2006) was procedurally defective and therefore unsustainable; accordingly the Tribunal quashed the rollback insofar as it was effected without giving notice.
  6. Prospective corrective power: The Tribunal clarified that its quashing on procedural grounds did not foreclose the respondents from taking corrective administrative action in accordance with due process. Respondents were granted liberty to effect a lawful prospective rollback after issuing appropriate notice and following the requisite procedures (including departmental inquiry and consideration by anomaly committee/ Ministry of Finance as appropriate).
  7. Administrative follow-up noted: The Tribunal recorded the respondents' subsequent administrative step (letter dated 17.11.2006 seeking approval for revision of pay scales through the anomaly committee), noting that respondents wished to pursue the matter administratively and the Tribunal expressed hope that the applicants' case would be properly presented.

Holding and Implications

Holding: The Tribunal quashed the order dated 2.1.2006 insofar as it rolled back the upgraded pay scales of the applicants with retrospective effect without issuing show-cause notices. The Tribunal upheld the part of the impugned order that provided that no recoveries should be made for amounts already paid.

Implications and direct consequences:

  • The rollback effected by the respondents by order dated 2.1.2006 is set aside to the extent it retrospectively deprived the applicants of the higher pay scales without notice; the applicants therefore remain entitled to the benefit of the higher pay scale until any lawful prospective action is taken.
  • The respondents retain the executive power to re-address pay fixation and may lawfully roll back or revise pay scales prospectively, but only after complying with procedural safeguards (including issuing notice to affected employees and following departmental and administrative channels such as inquiry and anomaly committee consideration).
  • The Tribunal upheld that no recoveries shall be made for the prior period (1.1.1996 to 31.12.2005), consistent with the impugned order's no-recovery clause and Supreme Court precedent.
  • There is no broader legal doctrine or new precedent established by this order beyond the direct determination: the decision rests on procedural grounds (failure to give notice) and on applying existing principles limiting judicial interference in pay fixation while protecting against arbitrary executive action.

Disposition: The Original Applications were disposed of with the directions stated above; parties were directed to bear their own costs. A copy of the order was to be placed in OA No. 449/2006.

    Satya Prakash v. Union Of India

    Neena Ranjan, Member (A):— This common order will decide two OAs bearing No. 86/2006 and No. 449/2006, since common question of facts and law is involved.

    2. The applicants have filed this OA for the following reliefs:—

    Call for records culminating into issuance of Office Order dated 26.9.2000 (Annexure A-2) vide which the upgraded pay scale was granted and the impugned Office Order dated 2.1.2006 (Annexure A-1) by which the upgraded scale has been withdrawn to judicially see whether impugned action is sustained in law;

    Quash and set aside the impugned order dated 2.1.2006 (Annexure A-1); and Direct respondents to restore the upgraded pay scale of Rs. 5000-8000 from 1.1.2006 forthwith.

    3. The facts, in brief, are that the applicants, who are Sanitary Inspectors working in NICD in the pay scale of Rs. 4000-100-6000, were granted an upgraded pay scale of Rs. 5000-8000 effective from 1.1.1996 vide Office Order dated 26.9.2000 issued by NICD (Annexure A/2). The Directorate General of Health Services further upgraded the pay scale of Sanitary Inspectors at PHOs/APHOs to Rs. 5500-9000 effective from 6.11.2000 vide order dated 29.11.2001 (Annexure A/3). However, by the impugned order dated 2.1.2006, which is at Annexure A/1, the respondents have withdrawn the benefit of higher pay scale which the applicants were enjoying since 1.1.1996 Hence, the applicants immediately made representations dated 29.12.2005 and 2.1.2006 to agitate on lowering of pay scales. The applicants along with their colleagues also requested for grant of revised pay scale of Rs. 5500-9000 at par with Sanitary Inspectors working at PHOs/APOHs under DGHS, but their representations were not taken into consideration. It is also contended that a perusal of the order dated 29.11.2001 makes it amply clear that on the one hand DGHS have upgraded the pay scale of Sanitary Inspectors working at PHOs/APHOs from Rs. 4000-6000 to Rs. 5500-9000 but on the other hand by impugned order dated 2.1.2006, respondents have withdrawn even the pay scale of Rs. 5000-8000 granted to the applicants with effect from 1.1.1996 and that too without any prior notice.

    4. Based on above facts, the applicants have submitted that the respondents' action in withdrawing upgraded pay scale of Rs. 5000-8000 granted since 1.1.1996 in lieu of Rs. 4000-6000 without prior notice is illegal, arbitrary and discriminatory and is violative of principles of natural justice. It is further submitted that the respondents be restrained from withdrawing the upgraded pay scale of Rs. 5000-8000 at this belated stage, which the applicants had been enjoying since 1.1.1996 The action of the respondents shows complete discrimination towards the applicants inasmuch as DGHS has granted pay scale of Rs. 5500-9000 to Sanitary Inspectors working at PHOs/APHOs whereas in the case of present applicants, they have denied even the pay scale of Rs. 5000-8000 without any reason or basis, which stood granted to them since 1.1.1996, as such, the applicants pray that the OAs be allowed and respondents be directed to place them in the scale of Rs. 5000-8000 w.e.f 1.1.2006

    5. In the counter reply, the respondents have submitted that the applicants, who were working in National Institute of Communicable Diseases (NICD) in the pay scale of Rs. 4000-6000, were granted upgraded pay scale of Rs. 5000-8000 with effect from 1.1.1996 in the following perspective:—

    (i) That with the approval of Ministry of Finance, Department of Expenditure, the pay scales of following Technical categories of NICD were upgraded by the Dte. GHS/MOH and FW vide letter dated No. A-60011/8/1987-PH (CDL) dated 22.2.2000

    Sr. No. Name of the post Existing Pay scale Recommended by the Government 1. Laboratory Asstt. Rs. 3200-4000 Rs. 4000-6000 Rs. 4500-7000 2. Laboratory Technician Rs. 4000-6000 Rs. 5000-8000 3. Research Assistant Rs. 4500-7000 Rs. 5500-9000 4. Sr. Research Assistant Rs. 5500-9000 Rs. 6500-10500 5. Assistant Research Officer Rs. 6500-10500 Rs. 6500-10500

    (ii) The applicants had represented for upgradation of their pay scale from Rs. 4000-6000 to Rs. 5000-8000 and their cases were referred to Dte. GHS for upgradation of pay scale from Rs. 4000-6000 to Rs. 5000-8000 in view of the revision of the pay scale of the technical posts mentioned above. The Dte. GHS intimated vide letter dated 20.7.2000 that the case of Shri Mange Ram Verma, Filaria Inspector may be dealt with in the light of the orders issued vide letter dated 22.2.2000 (Annexure R-II). Thereafter, the pay scale of Malaria Inspector and Filaria Inspector were upgraded from Rs. 4000-6000 to Rs. 5000-8000 (Annexure R-III). S/Shri Satya Prakash, Ashok Kumar Sharma and Bhoop Singh Yadav, Sanitary Inspectors submitted representations on 18.8.2000 and 29.8.2000 respectively for upgradation of their pay scales from Rs. 4000-6000 to Rs. 5000-8000 in view of the revision of pay scale of Technical staff in NICD vide Dte. GHS letter No. A.60011/8/97-PH (CDL) dated 22.2.2000 annexed as Annexure R-1. Their representations were examined by NICD, Delhi itself and disposed off by allowing grant of higher scale of pay, i.e Rs. 5000-8000. The approval of the Dte. GHS was not considered necessary in view of the Dte. GHS letter No. A.60011/19/2000-PH (CDL) dated 20.7.2000 containing the instructions that the case may be dealt with at the end of the NICD. It is submitted that the Ministry of Health and Family Welfare on noticing that the upgraded pay scale from Rs. 4000-6000 to Rs. 5000-8000 in respect of Malaria Inspector/Filaria Inspector/Santiary Inspector have not been approved by the Ministry of Finance, a decision was taken at the level of Secretary (Health) that the pay scale be rolled back w.e.f 1.1.2006 and the matter may be enquired into departmentally and a proposal be submitted to anomaly committee of DOP&T simultaneously, as there is anomaly vis-à-vis the pay scale of feeder grades to these posts. Accordingly, the matter is being inquired into departmentally. However, the recoveries on account of upgradation of pay scales from Rs. 4000-6000 to Rs. 5000-8000 w.e.f 1.1.1996 to 31.12.2005 are not to be made.

    (iii) It is further submitted that necessary proposal for anomaly committee has already been submitted to respondent No. 1 for onward transmission to Ministry of Finance by the respondent No. 3 for restoration of the pay scale of Rs. 5000-8000 with effect from 1.1.1996 Ministry of Health and Family Welfare (respondent No. 1) has already referred the case to the Ministry of Finance, but the concurrence is still awaited.

    (iv) The next contention of the respondents is that as per the existing notified Recruitment Rules, the post of Sanitary Inspector is to be filled by transfer from amongst persons holding the posts of Malaria Inspector and Filaria Inspector in the equivalent pay scale and possessing the qualifications and experience prescribed for Direct recruits, failing which by direct recruitment. The pay scale of these posts were revised to Rs. 5000-8000 by taking into consideration the Dte. GHS letter dated 20.7.2000

    (v) It is further submitted that in pursuance of the Ministry of Health and Family Welfare letter dated 26.12.2005, the pay scale of Rs. 5000-8000 granted to Malaria Inspector/Filaria Inspector/Sanitary Inspector was rolled back w.e.f 1.1.2006 with the stipulation, that the recoveries may not be made as there is an anomaly vis-à-vis feeder grade. The matter is being enquired into as to why the approval of the Ministry of Health and Family Welfare has not been taken while revising the pay scale in respect of Malaria Inspector/Filaria Inspector/Sanitary Inspector. The proposal regarding revision of pay scale has already been referred to the 6th Pay Commission set up for the purpose vide letter No. A-60011/10/95-PH(CDL) (pt.) dated 17.11.2006 and, therefore, the issue raised in the present OA cannot be dealt with by the Tribunal.

    (vi) The applicants representations dated 29.12.2005 and 5.1.2006 need no examination/consideration at this stage since the pay scale of Rs. 5000-8000 has been rolled back which is lower than Rs. 5500-9000. It is submitted that as per the Recruitment Rules, the essential educational qualification for the persons working at APHO/PHO is Bachelor Degree in Science with Chemistry or equivalent from a recognized Institute, therefore, Sanitary Inspectors working at APHO/PHO were given the pay scale of Rs. 5500-9000. But at NICD, the educational qualification is (i) Matriculate or equivalent from a recognized Board; and (ii) should have passed Sanitary Inspector course or possessed equivalent qualification from a recognized Institution.

    6. It is further submitted that parity between Sanitary Inspectors in different organizations is not a matter of right, unless the duties, responsibilities and Recruitment Rules etc. are similar, therefore, there is no similarity between the case of Sanitary Inspectors of APHO/PHO and Sanitary Inspector of NICD for grant of pay scale at par with that of Sanitary Inspector of APHO/PHOs, as such it is prayed that the OAs may be dismissed.

    7. In the rejoinder, the applicants have reiterated their own case and hence denied the allegations made in the counter.

    8. The respondents contend that the question to be decided is whether the applicants were entitled to be granted the upgraded pay scale of Sanitary Inspectors working in NIDC at par with Sanitary Inspectors of APHO/PHOs. By order dated 2.1.2006 (Annexure A-1) of the Government of India, National Institute of Communicable Diseases, Directorate General of Health Services, the upgraded pay scale of Rs. 5000-8000 granted to the cadre of Malaria Inspector/Filaria Inspector and Sanitary Inspector was withdrawn w.e.f 1.1.2006 and the applicants were placed in the pay scale of Rs. 4000-6000.

    9. The Hon'ble Supreme Court in case of Union of India v. P.V Hariharan (CA 7127/1993) 1997 SCC (L&S) 38 cautioned the Tribunals in interfering with the pay scales since it was a serious matter and has a cascading effect on several other categories. Hon'ble Court made the following observation:—

    “Before parting with the appeals we feel to impelled to make a few observations. Over the past few weeks, we have come across several matters decided by Administrative Tribunal on the question of pay scales. We have noticed that quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a Pay Commission”.

    10. In another Apex Court case of Secretary, Finance Department v. West Bengal Registration Service Association, 1993 Supp (1) SCC 153 : JT 1992 (2) SC 27 it is laid down that the parameters for interference of the court in such matters would be limited:—

    “We do not consider it necessary to traverse the case law on which reliance has been placed by counsel for the appellants as it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the pay commissions etc. But that is not to say that the court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary state action or inaction. Courts must, however, realize that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements….. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and court's interference is absolutely necessary to undo the injustice”.

    11. The respondents also referred to full Bench of this Tribunal in the case of M.V.R Rao v. Union of India, ATFBJ page 260 that “in terms of maintenance of secrecy, workload, etc. the job performed by Central Secretariat Staff is different from those performed by non-Central Secretariat Staff, therefore, different pay scales were in order”.

    12. We have given some consideration to the submissions made and the earlier cited judgments of this Tribunal and perused the record.

    13. In the present case, the order of upgradation of the pay scales of Malaria Inspector/Filaria Inspector/Sanitary Inspectors worked in NICD were issued with the clear direction that these pay scales were specific to the applicants and could not be extended to similar posts elsewhere. The applicants have been getting the higher pay scale for 10 years. It was with the approval of the Ministry of Finance that certain pay scales of technical categories of NICD were upgraded by DGHS/MOS, as indicated in para 5 above. These scales were then also extended to Sanitary Inspectors on the same criteria by DGHS. However, in this instance, no reference was made to MOH. When this came to the notice of Secretary (Health), he ordered on 2.1.2006 (page 8) a roll back with effect from 1.1.2006, with the proviso that the matter be inquired into and a proposal be submitted to the Anomaly Committee of DOP&T. Of course it was made clear that no recovery shall be made.

    14. The last sentence with regard to no recovery is in consonance with the Supreme Court ruling wherein it is held that if any payments are made without any misrepresentation by the employees, even by mistake, this should not be recovered, therefore, this part of the order dated 2.1.2006 is upheld. However, the question is whether pay scales could have been rolled back without giving show cause notice.

    15. It is also held by Hon'ble Supreme Court that if any order has civil consequences, it cannot be passed without putting affecting parties on notice. In the instant case, higher pay scales to applicants, given by respondents, were enjoyed by them for over 10 years. It is not the case of respondents that applicants had misrepresented the facts. In fact, the respondents have themselves stated that orders granting higher pay scale were issued without taking approval from MOF. Therefore, at best, respondents would say they had issued the order wrongly, by mistake. If that be so, it could have been corrected prospectively only after by following laid down procedures, i.e after giving show cause notice. In the instant case, admittedly, no show cause notice was given before issuing order dated 2.1.2006, therefore, the order dated 2.1.2006 to that extent is not sustainable in law. Accordingly, order dated 2.1.2006 is quashed to the extent of rolling back the pay scales.

    16. We would like to clarify that since the order rolling back has been quashed on technical ground, respondents would have liberty to roll back the pay scales prospectively after following due process of law, i.e, after putting the applicant on notice. It is also relevant to note that respondents have themselves issued letter dated 17.11.2006 with the following subject:—

    “Approval for Revision of the Pay Scale for the post of (i) Filaria Inspector (ii) Malaria Inspector (iii) Sanitary Inspector through Anomaly Committee”.

    17. From above, it is clear that respondents also want to revise the pay scale of applicants. We hope and trust that respondents would project the case of applicants in proper perspective so that it may be decided finally.

    18. As a result of the above, the Original Applications are disposed off with above directions. The parties are left to bear their own costs.

    Let a copy of this order be placed in OA No. 449/2006.

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    Comments

    Satya Prakash v. Union Of India
    (Jan 31, 2006)