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pay scale was granted and the impugned Office Order dated 2.1.2006 (Annexure A-1) by which the upgraded scale has been withdrawn to judicially see whether impugned action is sustained in law;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 However, by the impugned order dated 2.1.2006, which is at Annexure A/1, the respondents have withdrawn the benefit of higher pay scale which the applicants were enjoying since 1.1.1996 Hence, the applicants immediately made representations dated 29.12.2005 and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PHOs/APHOs from Rs. 4000-6000 to Rs. 5500-9000 but on the other hand by impugned order dated 2.1.2006, respondents have withdrawn even the pay scale of Rs. 5000-8000 granted to the applicants with effect from 1.1.1996 and that too without any prior notice.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.