SUBE SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) THE applicants are Superintendents (Comn.) working under the Customs and Excise, Department of Government of India. According to the applicants their posts were created to provide better professional efficiency in the department with the purpose of eliminating smuggling and ensuring that there was no loss of revenue. The Directorate of Communication was created under CBEC with the responsibility for installation, maintenance and operation of wireless links in the Commissionerate. This was subsequently merged with the Directorate of preventive operations (Directorate of Logistics) having three divisions, namely, Communications, marine and anti smuggling. There were various posts in the Communication Wing, such as, Radio Operator/Radio Technician/Technical Assistant/Cipher Assistant/Supervisor/Communication Assistant/Superintendent (Comn.). The aforesaid posts have been operated in different scales. The applicants have further stated that the post of Superintendent has been treated as non ministerial Group -B Gazetted post and the pay scale of the said post was at par with other Superintendent (Customs), Superintendent (Central Excise), Appraiser and other equivalent post in CBEC and CBDT. Thus, there was historical parity amongst Superintendents mentioned above. However, on 21.04.2004, the respondents issued an order by which the pay scale of other Superintendents was revised to Rs. 7500 -12000 whereas the applicants continued in the pay scale of Rs. 6500 -10500. Since they were not granted the upgraded pay scale, they submitted a representation on 28.04.2004. However, no action was taken by the respondents qua the applicants. A detailed letter was then sent by the All India Telecommunication Group B Gazetted Officers Association on 16.07.2004 in which it was stated that Superintendents (Comn.) of Directorate of Logistics, Customs and Central Excise were also entitled for upgraded pay scale at par with other Superintendents. Even then the respondents did not take any action. Thereafter, two more letters dated 18.12.2006 and 22.09.2006 reiterating the same demand were sent. The letter dated 18.12.2006 was sent to the 6th C.P.C. for removal of this anomaly. The 6th C.P.C. submitted its recommendation for approval to the Government of India. The 6th C.P.C. specifically recommended that Group -B Officers of Department of Posts and Revenue be granted Grade Pay of Rs. 5400 in PB -II on non functional basis after four years of regular service in the Grade Pay of Rs. 4800.

(2.) THE contention of the applicants is that the respondents have acted in violation of Articles 14 and 16 of the Constitution. The respondents have failed to consider that the 5th C.P.C. had recommended the same pay scale of Rs. 6500 -10500 for all Superintendents. Once the said equivalence has been accepted, the same could not have been disturbed by the respondents by selectively upgrading the pay scale of other Superintendents leaving out the applicants. Further, they have stated that their administrative department is the best judge to decide whether there should be parity amongst all Superintendents or not. Since their case was supported by their Administrative Department, there was no reason to disturb this historical parity. Even 5th C.P.C., which is an Expert Body, had accepted the equivalence. In the case of S.R. Dheer & Ors. vs. UOI in OA -164/2009 this Tribunal has held that the action of the respondents in disturbing historical parity cannot be justified. Further, in the cases of Purshottam Lal vs. UOI, : AIR 1973 SC 1088, Inder Singh vs. Vyas Muni Mishra, : JT 1987 Vol. III SC 384, UOI vs. Dineshan KK, : (2008) 1 SCC (L & S) 248, Randhir Singh vs. UOI, : AIR 1982 SC 879 and UOI vs. Kuldeep Singh, : 2004 (2) SCC 590, UOI vs. Mohinder Singh, : 2008 (1) SLJ SC 131 and Nehru Yuva Kendra Sangathan vs. Rajesh Mohan Shukla and Ors., : JT 2007 (9) SC 292 it has been held that once equivalence has been accepted, the action of the authorities in granting different pay scales to equivalent posts in equivalent cadre cannot be justified. On these grounds the applicants have prayed that their O.A. be allowed.

(3.) WE have heard both sides and have perused the material on record. The main contention of the applicants is that when their posts were created they were placed in the same pay scale as other Superintendents on the Executive side. This position continued during the 5th C.P.C. but on 11.05.2004 the respondents selectively upgraded the pay scale of other Superintendents leaving the applicants out. Thus, they have disturbed the historical parity which had existed till then. The claim of the applicants is thus based solely on the ground that since creation of their posts they were in the pay scale as other Superintendents till this parity was disturbed by order dated 11.05.2004. They have, however, failed to establish whole side identity with other Superintendents as regards educational qualifications, mode of recruitment, nature of duties etc. to establish parity with these posts. The mere fact that when their posts were created they were in the same pay scale as other Superintendents cannot establish the fact that the parity between the two posts was accepted. While it is true that this position was not disturbed by the 5th C.P.C., it is not clear whether 5th C.P.C. examined actually this specific issue of parity between the two cadres. Further, as contended by the respondents, the 6th C.P.C. looked into this issue and recommended that case for parity is not made out. The applicants have disputed this and argued that the observations of the 6th C.P.C. were only regarding the Ministerial cadre whereas the applicants were in the Non Ministerial cadre. Even if this argument is accepted, the applicants have failed to show any recommendation of the 6th C.P.C. supporting upgradation of the pay scales of the applicants. This despite the fact that the applicants have themselves stated in their pleadings that their own representation dated 18.12.2006 had been referred to the 6th C.P.C. for removing the anomaly. The applicants submitted that 6th C.P.C. recommendation that Group -B officers of Department of Revenue & Posts be granted Grade Pay of Rs. 5400 in PB -II implies that their demand was accepted. However, we are not convinced. It is obvious that even though this issue was referred to 6th C.P.C., they have not made any recommendation supporting the claim of the applicants.