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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 22nd October, 2019
Decided on: 5th November, 2019
+ W.P.(C) 5310/2015
DIRECTOR, DIRECTORATE OF INCOME TAX (HRD)
& ORS. .... Petitioners
Through: Mr. R. Ramachandran, Advocate with
Ms. Lakshmi Gurung, Sr. Standing
Counsel of IT and Mr. Siddharth
Gupta, Advocate
Versus
RAMESH DANG & ORS. ..... Respondents
Through: Mr. Kundan Kumar Lal, Advocate
CORAM: JUSTICE S. MURALIDHAR
JUSTICE TALWANT SINGH
JUDGMENT
Dr. S. Muralidhar, J.:
1. The Directorate of Income Tax (Organisation & Management Services)
[DIT (O&MS)], its Director General, its Director, the Secretaries to the
Ministry of Finance, Department of Revenue and the Department of
Personnel, Ministry of Personnel Grievances, Training and Pension, have
filed this petition against an order dated 15th January, 2014 passed by the
Principal Bench of the Central Administrative Tribunal (CAT) allowing OA
No.2906/2011 filed by the six Respondents, who were all Technical
Assistants in the DIT (O & MS) and directing the Petitioners to grant them
the pay scale of Rs.6500-10500/- on par with Inspectors of Income Tax,
W.P. (C) 5310 of 2015 Page 1 of 12
with effect from 21st April, 2004 and also grant them grade pay of Rs.4600/-
in the scale of Rs.9300-34800/- (PB-II) with effect from 1st January, 2008.
The arrears were restricted with effect from 1st January, 2006.
2. On 21st August, 2005 the following order was passed by this Court:
"Learned counsel for the petitioner submits that the respondents
(Technical Assistants) were drawing higher salary than the
Inspectors of Income Tax and Assistants of the Central
Secretariat Service in the year 1972. Counsel further submits
that this by itself could not have been one of the grounds to grant
pay parity to the respondents for the period 2004 to 2006
onwards. It is further contended that the salaries of the
Inspectors of Income Tax were upgraded in the year 2004 and
salaries of Assistants of the Central Secretariat Service were
upgraded in the year 2006 after detailed assessment and on
account of their nature of duties and the degree of responsibility.
It is contended that the respondents could not have been granted
this benefit for the period 2004 to 2006 as their duties and
responsibilities were not identical.
Issue notice to the respondents to show cause as to why Rule nisi
be not issued, returnable on 20.10.2015. Notice in the stay
application as well for the date fixed.
We are also informed that a contempt petition has also been filed
before the Tribunal. Till the next date of hearing, operation of
the impugned order dated 15.1.2014 passed by Central
Administrative Tribunal and further proceedings arising from the
contempt proceedings shall remain stayed.
DASTI to the petitioners."
3. Subsequently, on 26th February, 2018 the Court was informed that the
contempt petition filed by the Respondents had been disposed of by the
W.P. (C) 5310 of 2015 Page 2 of 12
CAT in view of the above interim order. The application for interim relief
was accordingly disposed of.
4. The background facts are that the Respondents are working as Technical
Assistants in the DIT (O & MS). Prior to 1st January, 1972 i.e. before the
recommendations of the 3rd Central Pay Commission (CPC) became
effective, the pay scale of the Respondents was Rs.325-575, whereas that of
the Inspectors of Income Tax and Assistants of Central Secretariat Services
(CSS) was Rs.210-485. After the 3rd CPC recommendations were
implemented, the pay scale of Respondents was revised to Rs.550-900 and
that of the Inspectors of Income Tax to Rs.425-800.
5. In terms of the recommendations of the 4th CPC, which was given effect
to from 1st January 1986, the pay scales of both the Respondents as well as
Inspectors of Income Tax were brought on par at Rs.1640-2900. This parity
was maintained even in the 5th CPC and the pay scales were revised for both
with effect from 1st January, 1996 to Rs.5500-9000. Even for Assistants of
the CSS it was Rs.5500-9000.
6. On 21st April, 2004 the pay scale of the Inspectors was upgraded to
Rs.6500-10500. This was the pay scale given to the Assistants of the CSS
from 25th September, 2006. However, as far as the Respondents i.e.
Technical Assistants were concerned, it continued to remain at Rs.5500-
9000.
7. It has been explained by the Petitioners that the above upgradation of the
W.P. (C) 5310 of 2015 Page 3 of 12
pay scale of Inspectors of Income Tax to Rs.6500-10500 came about on the
recommendation of a High Power Committee to which the issue of revision
of pay scale of Inspectors and Officers of the Department of Revenue to be
brought on par with Inspectors and Superintendents of Customs and Central
Excise was referred. The above change with effect from 21st April, 2004 in
the pay scale of Inspectors brought them on par with officers of the CBI and
the IB.
8. It has been pointed out by the Petitioners that one reason for the upward
revision of the pay scales of Inspectors was that there was an element of
direct recruitment to that post through an All India Competitive
Examination. However, the mode of recruitment to the post of Technical
Assistants as per the applicable Recruitment Rules (RRs) was by promotion,
failing which by transfer on deputation. Also, the field of selection on
deputation was not limited to Assistants of CSS and Inspectors of Income
Tax but also to Head Clerks and UDCs in the lower cadre.
9. A representation was made by the Respondents in October, 2006 for
removal of the disparity in the pay scales when compared to the Inspectors
of Income Tax. This representation was forwarded to the Central Board of
Direct Taxes (CBDT) for its consideration. However, by this time i.e.
November, 2006, the 6th CPC already stood constituted. Consequently, by a
communication dated 27th November, 2006, the CBDT informed the
Respondents that since the 6th CPC already stood constituted, they should
submit their memorandum directly to the CPC. However, it appears that the
Respondents did not do so.
W.P. (C) 5310 of 2015 Page 4 of 12
10. The attempt of the 6th CPC was to reduce the total number of pay scales.
Its recommendations which became effective on 1st January, 2006, resulted
in the Respondents, Inspectors of Income Tax and Assistants of CSS getting
a pay scale of Rs.9300-34800. However, it was noticed that the central
recommendation of the 6th CPC regarding clubbing of various pay scales in
order to reduce the number had resulted in an anomalous situation for
Inspectors of Income Tax and Assistants of CSS. The Government
acknowledged this and revised the grade pay from Rs.4200 to Rs.4600 in
case of Inspectors of Income Tax and Assistants of CSS by an OM dated
13th November, 2009.
11. In para 3.15 in the present petition it is stated as under:
"3.15 It is worth mentioning that the 6th CPC vide para
2.2.21(v), recommended that on account of merger of pre-
revised pay scales of Rs.5000-8000, Rs.5500-9000 and
Rs.6500-10500, some posts which presently constitute feeder
and promotion grades will come to lie in an identical grade. The
specific recommendations about some categories of these posts
made by the Pay Commission are included in Section II of Part
B. As regards other posts, the posts in these three scales should
be merged with the posts in the scale of Rs. 6500-10500 being
upgraded to the next higher in the pay band PB-2 i.e. to the
grade pay of Rs.4600 corresponding to the pre-revised pay scale
of Rs.7450-11500. In case a post already exists in the scale of
Rs.7450-11500, the post being upgraded from the scale of
Rs.6500-10500 should be merged with the post in the scale of
Rs.7450-11500. This recommendation was accepted by Govt.
and notified in Part-B, Section 1 (ii) of the CCS (RP) Rules,
2008."
12. It is further stated that the Department of Expenditure in the Ministry of
W.P. (C) 5310 of 2015 Page 5 of 12
Finance issued an OM dated 13th November, 2009 which prescribed that
posts which were in the pre-revised pay scale of Rs.6500-10500 as on 1st
January, 2006 and which were granted the normal replacement pay structure
of grade pay of Rs.4200/- in PB-II will be granted the grade pay of
Rs.4600/- in PB-II corresponding to the pre-revised scale of Rs.7450-11500
with effect from 1st January, 2006. However, the Respondents i.e. Technical
Assistants (DOMS) who were in the pre-revised scale of Rs.5500-9000 as
on 1st January, 2006 were not covered by the above OM dated 13 th
November, 2009. They were accordingly extended the normal replacement
scale of Rs. 9300-34800 PB-II plus grade pay of Rs.4200/-. This was lower
than the grade pay granted to the Inspectors of Income Tax in the pre-
revised scale of Rs.6500-10500 with grade pay of Rs.4600/- in PB-II.
13. This was extended subsequently by another OM dated 16th November,
2009 of the Department of Expenditure to Assistants of CSS, (AFHQ), IFS
(B) and Railway Board Secretariat Service with effect from 1st January,
2006. It is pointed out that even in the posts of Assistant of CSS there is an
element of direct recruitment to the post through an All India Competitive
Exam. On the other hand, the post of Technical Assistant was to be filled by
promotion failing which by deputation. It is accordingly submitted that the
post of Technical Assistant is not covered by the OM dated 16 th November,
2009 for grant of grade pay of Rs. 4600/- in PB-II.
14. It is pointed out by the Petitioners that the proposal for upgradation of
the pay structure of the Technical Assistants was rejected by the Department
of Expenditure by a letter dated 23rd November, 2010. The Respondents then
W.P. (C) 5310 of 2015 Page 6 of 12
filed OA No. 2906/2011 in the CAT in August, 2011. Although a plea was
taken by the Petitioners herein (Respondents in the said OA) regarding the
OA being barred by limitation, that question was apparently not dealt with
by the CAT.
15. Turning now to the impugned order of the CAT, the conclusion reached
was that the Department of Expenditure failed to appreciate that the question
is not one of parity of pay scale but one of an anomaly that required
correction. It was held by the CAT in the operative portion of the impugned
order as under:
"9. Therefore, in our considered view, the rejection of the
claim of the Applicants for the pay scale of Rs.6500-10500 by
the Ministry of Finance, Department of Expenditure is highly a
mechanical exercise of its powers. We also hold that the issue
involved in this case is not parity of pay scale though the
Applicants have mentioned so in the prayer clause but from all
the correspondence between the Applicants Department and
the Ministry of Finance shows that it is a case of anomalous
situation created by not increasing the pay scale of the
Applicants when the pay scales of the Inspectors of Income
Tax and Assistants of CSS have been increased with effect
from 22.04.2004 and 25.09.2006 respectively. We, In the
above facts and circumstances of the case, allow this OA and
quash and set aside the impugned Annexure A-1 letter
No.23.11.2010 addressed to the Director, Directorate of
Income Tax (Organisation and Management Services) vide UO
Note No.15(21)/E.III(B)/2010 dated 12.10.2010 whereby the
proposal for upgradation of pay scale has been rejected.
Consequently, we direct the Respondents to grant the pay scale
of Rs.6500-10500 to the Applicants who are Technical
Assistants in Directorate of Organisation and Management
with effect from 21.04.2004, i.e., the date from which the
Inspectors of Income Tax were granted the said scale by the
W.P. (C) 5310 of 2015 Page 7 of 12
Central Board of Direct Taxes. For the same reason, we also
direct the Respondents to grant the Grade Pay of Rs.4600/- In
the scale of Rs.9300-34800 (PB-2) as in the case of the
Inspectors of Income Tax and Assistants of CSS with effect
from 01.01.2008 granted vide OM No.F.1/l/2008-IC dated
13.11.2009. However, as regards the payment of arrears are
concerned, we restrict the same with effect from 01.01.2006,
i.e., the date from which the aforesaid scale has been granted to
the Inspectors of Income Tax. We also direct that the
Respondents shall comply with the aforesaid directions by
passing appropriate orders within a period of two months."
16. The short question that arises for determination in the present petition is
the tenability of the claim of the Respondents that they should be paid
salaries and allowances on par with Inspectors of Income Tax.
17. This Court had required counsel for the Respondent to explain to the
Court what the functional similarities, if any, were between the Technical
Assistants and Inspectors of Income Tax. Counsel for the Respondent has
filed the written submissions on 31st October, 2009 setting out the detailed
job profile of Technical Assistants and that of the Inspectors of Income Tax
in a tabular form as under:
1. To examine basic data relating to work load of 1. Assistance in search and
the income tax office and update the data if seizure operations if so
necessary. directed.
2.To verify basic data for accuracy of annual 2.Assistance in preparation
counts/frequencies reported the field offices of of replies to parliament
income tax department. questions, reports for C&AG
and parliamentary committee
3.To prepare organization charts, duty lists, and etc.
work distribution charts of income tax office
understudy. 3. Maintenance of daily diary
for the work done during day
4.To assist the assistant director/additional and submission thereof to
W.P. (C) 5310 of 2015 Page 8 of 12
assistant director in running work supervising authority once a
sample/activity analysis etc during work studies. week unless called for
earlier.
5. To prepare job descriptions for systematic
analysis of jobs by interviewing the job holders 4.Assistance in performance
in the office under study. review, action plan and
statistical reports to
6. To carry out direct time observation/time authorities.
study of repetitive jobs during work studies.
5.Assistance in Public
7. To undertake Analytical estimation of long relation, taxpayer education
cycle jobs, to estimate establish time factors. and assistance.
8.To prepare workload computations for each 6.Assistance in foreign
job/item of work on annual basis, based on data section work.
collected from the office understudies.
7.Service of
9.To discuss with the officers and staff members summons/notices if so
of the office under studies details of work load directed.
calculations and computations.
8. Work relating to enquiry
10.To assist Assistant director/Additional and surveys, Investigations
assistant Director and related work.
(a) In discussions
with functionaries of the office understudy 9. Work relating to
(b) in preparation of the study reports assessments and related
(c) in proper upkeep and maintenance of file functions, collection of arrear
and records. For carrying out review of the demand, tax recovery.
procedures and systems of work
Laying down work/staffing norms 10. Tax evasion petitions and
Assisting CBDT in formulation of the action prosecutions.
plan for the Income tax Department and its
appraisal by regularly monitoring the 11.Work relating
performance of the field offices vis-à-vis to Audit and related
targets set for them. functions, TDS and related
Monitoring the utility of existing forms and functions.
registers office layouts etc. in the Income tax
Department. 12. Assisting office of Chief
CIT/CIT/Additional
Note: To carry out all above jobs/activities/ CIT/Joint CIT.
work, the technical assistant has to visit various
income tax offices spread all over India including
remote locations/islands like Andaman Nicobar
and Lakshadweep etc.
W.P. (C) 5310 of 2015 Page 9 of 12
18. It will straightway be noticed that the job profiles of the two posts are
not comparable. A Technical Assistant cannot be expected to replace an
Inspector of Income Tax. Based on the job profile, therefore, no case is
made out for parity as far as the pay scales are concerned.
19. The educational qualification for the post of Technical Assistants is a
bachelors degree in Commerce/Statistics/Economics/Mathematics. For the
post of Inspector, it is a bachelors degree or the equivalent thereof in any
stream. Nevertheless, as the above comparison shows, the scope of the
functions of an Inspector are very different from that of the Technical
Assistants.
20. The approach of the CAT was simply to go by the fact that earlier the
pay scales for the two posts were at par for a short period. In considering
this to be a case of ,,anomaly and not one of demand for ,,parity of pay
scales, the CAT avoided examining if the principle of ,,equal pay for equal
work espoused by the Respondents, would apply in the first place. It was
incumbent on the Respondents to have shown how the case for parity of pay
scales was made out, notwithstanding the difference in the functional/job
profiles in the two posts. This was not a case of a mere anomaly having to be
rectified, but that of demand for equating the pay scales of two dissimilar
posts.
21. The CAT thus overlooked the clear legal position as explained by the
Supreme Court in State of UP v. J.P. Chaurasia (1989) 1 SCC 121 as
under:
W.P. (C) 5310 of 2015 Page 10 of 12
"The matter of pay scale does not just depend upon either the
nature of work or volume of work done as primarily what is
needed to be noticed is evaluation of duties and responsibilities
of the respective posts. More often than not, functions of two
posts may appear to be the same or similar, but there may be
difference in degrees in the performance, like the responsibility
attached to a particular office. In such cases, it would not be
open to the court to consider whether the equation of posts
made by the Government or the pay scales accorded to them is
right or wrong, as such matters are exclusively within the
province of the Government. Perhaps the only question the
court can enquire into is whether appropriate policy has been
adopted by the Government which does not result in hostile
discrimination which is a very narrow and limited area of
enquiry. When equation of posts had been done on some basis,
the same should not be altered so as to equate with some other
post and enhance their pay scales".
22. The position was elucidated succinctly in S.C. Chandra v. State of
Jharkhand (2007) 8 SCC 279 where was held:
"If posts A and post B have been carrying the same pay scales,
merely because the pay scale of post A has been increased that
by itself cannot result in increase in the pay scale of post B to the
same level. It is entirely on the Government and the authorities
to fix the pay scales and to decide whether the pay scale of post
B should be increased or not".
23. This was reiterated in Union of India v. Hiranmoy Sen (2008) 1 SCC
630 where it was observed as under:
"4. This Court in S.C. Chandra vs. State of Jharkhand 2007 (8)
SCC 279 has held that the Court cannot fix pay scales as that is
purely executive function. In the aforesaid decision one of us
(Markandey Katju, J.) has discussed in detail the principle of
equal pay for equal work and has observed that the said principle
has been considerably watered down in recent decisions of this
W.P. (C) 5310 of 2015 Page 11 of 12
Court, and it is not applied unless there is a complete and
wholesale identity between the two groups, and even there the
matter should be sent for examination by an expert committee
appointed by the Government instead of the Court itself granting
the higher pay scale. The entire case law on the subject has been
discussed in the said decision. Following the aforesaid decision
in S.C. Chandra case this appeal has to be allowed. It cannot be
said that there is a complete and wholesale identity between the
Senior Auditors in the Office of Accountant General, Assam and
Meghalaya and Assistants in the Central Secretariat."
24. In the absence of any recommendations of an expert body like the CPC
or an Anomalies Committee, it was not open to the CAT to have itself
ordered the grant of parity in pay scales.
25. For the aforementioned reasons, the Court sets aside the impugned order
of the CAT. The petition is accordingly allowed but in the circumstances,
with no order as to costs.
S. MURALIDHAR, J
TALWANT SINGH, J.
NOVEMBER 05, 2019
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W.P. (C) 5310 of 2015 Page 12 of 12
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