B. Kishore Kumar v Union of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939** **OP (CAT).No. 154 of 2017 (Z) -----------------------------** ## **AGAINST THE ORDER IN OA 180/00084/2014 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH DATED 20-07-2016** ## **PETITIONERS/RESPONDENTS:** ## **-------------------------** **1. UNION OF INDIA** - **MINISTRY OF EARTH SCIENCES, NEW DELHI - 110 003.** **2. UNDER SECRETARY** **GOVERNMENT OF INDIA, MINISTRY OF EARTH SCIENCES, NEW DELHI - 110 003.** **3. THE DIRECTOR** **MINISTRY OF EARTH SCIENCES, CENTRE FOR MARINE LIVING RESOURCES & ECOLOGY, KENDRIYA BHAVAN, 6TH FLOOR, BLOCK C, P.B.NO.5415, CSEZ (P.O), KAKKANAD, KOCHI - 682 037.** **4. THE DIRECTOR (ESTABLISHMENT) GOVERNMENT OF INDIA, MINISTRY OF EARTH SCIENCES, PRITHVI BHAVAN, IMD CAMPUS, OPP.INDIA HABITAT CENTRE, LODI ROAD, NEW DELHI -110 003.** ## **BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENE** **RESPONDENT/APPLICANT:** **------------------------** **B. KISHORE KUMAR RADIO TELEPHONE OPERATOR, CENTRE FOR MARINE LIVING RESOURCES & ECOLOGY(CMLRE), MINISTRY OF EARTH SCIENCES, KAKKANAD, COCHIN - 682 037.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 14-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP (CAT).No. 154 of 2017 (Z) -----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 TRUE COPY OF OA NO. 180/0084/2014 DATED 30.1.2014 FILED BY THE RESPONDENT BEFORE THE CAT, ERNAKULAM BENCH.** **EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT DATED 15.5.2014, FILED BY THE PETITIONERS.** **EXHIBIT P3 TRUE COPY OF THE REJOINDER DATED 27.9.2015, FILED BY THE RESPONDENTS.** **EXHIBIT P4 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 08.6.2016, FILED BY THE PETITIONERS.** **EXHIBIT P5 TRUE COPY OF THE COMMON ORDER IN OA NO. 180/0084/2014 DATED 20.7.2016 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** ## **NIL** ## **KS** ## **True copy** **P.S. (Hr.Gr.)To Judge** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** **==============================** ## **OP(CAT)No. 154 of 2017** **============================== Dated this the 14[th] day of July, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon,J.** The challenge is against Ext.P5 verdict passed by the Tribunal, directing the petitioners herein to redesignate the isolated post of Radio Telephone Oprator (RTO) as Senior Technical Assistant(STA) and give the applicant the relevant pay scale with effect from 1.1.2006, however, restricting the arrears to be paid for a period of three years immediately prior to the filing of O.A., in terms of the order passed by the Apex Court in **Union of India v. Tarsem Singh [(2008) 2 SCC (L&S) 765].** 2. The crux of the contentions raised by the petitioners, who were respondents before the Tribunal, is OPCAT 154/2017 2 that the Tribunal does not have any power, jurisdiction or competence to equate the pay scale or make a classification for the post with respect to the duties and responsibilities; which function comes exclusively within the purview of the expert body like Pay Commission. There cannot be any dispute to this fact, but the question is whether the case in hand stands on a different footing. This is obviously because, there is no dispute with regard to the fact that the post in question is an 'isolated post', there is no dispsute on the part of the 3[rd] petitioner/employer that, duties being performed by the respondent/applicant and that of the other post are exactly similar and further there is no dispute as well with the qualification to be possessed for the respective posts; coupled with such other relevant aspects. 3. The respondent herein joined the service in the Cost Guard as 'Navik' and was promoted as 'Pradhan Navik'. Later, he came out of the said service and joined the 3[rd] OPCAT 154/2017 3 petitioner Organization on deputation, in the post of 'Radio Telephone Operator' on 1.11.2004. As a matter of fact, in the said Organization which is a very small Organization as admitted by the petitioners, four posts were there, among which, one post was of Senior Technical Assistant, two posts were of Technical Assistants and one post of Radio Telephone Operator. The entire job in the Organization was being shared by all the above four persons. The basic qualification for appointment to the post in question was 'Diploma' and in the case of the respondent/applicant, he also possessed the Diploma in the relevant field to hold the post. However, the pay scales were different and there was a request to equalize the pay, based on the nature of duties and responsibilitieis. The matter was brought to the notice of the 6[th] Central Pay Commission constituted by the Government for analyzing the facts and figures and to suggest the replacement scale. OPCAT 154/2017 4 4. It remains a fact that after detailed discussion, the 6[th] Central Pay Commission made recommendations to the Government and in the said recommendations, the posts of Senior Technical Assistant and Technical Assistant were merged together, suggesting a common Pay Band (Pay Band No.2) whereas the isolated post of Radio Telephone Operator remained to be in Pay Band No.1. In respect of such 'isolated post', the 6[th] Central Pay Commission made it clear that the matter could be scrutinized by the Ministry concerned and that appropriate orders could be passed so as to redress the grievance, if any. It was accordingly, that the matter was caused to be considered by the Ministry, who however turned down the request made by the respondent/applicant as per Annexure A-15 order dated 29.7.2013 which was the subject matter of challenge before the Tribunal in the O.A. filed with the following prayers: “Relief(s) sought: In view of the facts and for the reason stated in OPCAT 154/2017 5 paragraph 4 and 5 above and also the arguments to be urged upon at the time of hearing, the applicant most humbly prays that the Honourable Tribunal may be pleased to: i) to call for the records leading to the issuance of Annexure-A15, Office Memorandum dated 29.7.2013 by the 2[nd] respondent to the Under Secretary, CMLRE, MoES, Kochi and to quash the same; ii) to direct the respondents to issue necessary orders redesignating the isolated post of Radio Telephone Operator in Centre for Marine Living Resources & Ecology, Ministry of Earth Science, Kochi as Senior Technical Assistant in the grade pay Rs.4200/- w.e.f. 1.1.2006, complying with the 5[th] and 6[th] CPC & DoPT Orders and also considering Article 39(d) 14 and 16 of the Constitution; iii) to direct the respondents to give the applicant the consequential seniority and other financial benefits; and iv) to grant such other relief, which this Honourable Tribunal may deem fit and proper in the circumstances of the case.” 5. The claim was resisted from the part of the respondents/petitioners herein, mainly on the grounds as aforesaid. The factual position was sought to be asserted by OPCAT 154/2017 6 the applicant by producing the relevant records to show that the duties and responsibilities were the same; that the employer was a 'small organization' where the duties were shared by all the four persons and further that the factual position in this regard was admitted by the employer himself who had recommended equalization of pay scale by way of different letters/proceedings submitted before the Ministry and the other appropriate authorities. After analyzing the facts and figures, the Tribunal held that the applicant was entitled to succeed and it was accordingly, that Ext.P5 verdict was passed, virtually allowing the O.A.; however limiting the monetary benefit, which is sought to be intercepted in this Original Petition. 6. The learned Central Government Counsel who appeared on behalf of the petitioners reiterated the version as put forth before the Tribunal and pointed out that the main relief sought for in the O.A., i.e. to direct the OPCAT 154/2017 7 respondents to issue necessary orders re-designating the isolated post of 'Radio Telephone Opeator' in the 3[rd] petitioner establishment as 'Senior Technical Assistant' was beyond the power or jurisdiction of the Tribunal. As mentioned already, the classification of posts or redesignation of the posts or granting of appropriate pay scale normally comes within the jurisdiction of the 'expert body' like the Pay Commission. There is no dispute with regard to the fact that the post of 'Radio Telephone Operator' is an isolated post and that the consideration in respect of such isolated post was left by the Central Pay Commission, to be dealt with by the Ministry. Whether the duty first cast upon the Ministry was properly exercised and discharged is the point. 7. Coming to the discussion made by the Tribunal in Ext.P5 with reference to the pleadings and proceedings, it is quite evident that the recommendation made by the '5[th] OPCAT 154/2017 8 Central Pay Commission' (as contained in point No. 22.41), has been extracted in paragraph 2 of Ext.P5 Order. The Tribunal then considered the recommendation made by the '6[th] Central Pay Commission' (given in the conclusion/ paragraphs 6.3.15). The Tribunal also observed that the Director, CMLRE, Kochi, (3[rd] petitioner herein) had sent Annxure A13 letter dated 26.2.2013 to the Joint Secretary, Ministry of Earth Science, New Delhi, narrating the facts and figures of the applicant's case and the recommendation of Vth and VIth Central Pay Commission and also categorially stating that the duties performed by the applicant (RTO) and that of Senior Technical Assistant (STA) were one and the same. The fact that the RTO post was an 'isolated post' was also conceded. It was strognly recommended for redesignation of the post of RTO as STA taking into account that the nature of duties of both the posts was the same. The CMLRE had four Tchnical Staff, 01 Senior Technial OPCAT 154/2017 9 Assistant (STA), 02 Technical Assistant (TA) and 01 Radio Telephone Opertor(RTO) to asist in the co-ordination of science programmes and ship activities. It was also pointed out that the duties were therefore equally divided among the staff of the CMLRE, i.e. among Technical Assistants/Senior Technical Assistant and 'RTO' (held by the appliant). 8. The factual position as admitted, asserted and recommended by the employer (3[rd] petitioner) has been adverted to further by the Tribunal in paragraphs 5 and 6. The nature of duties stated as similar and the absence of any difference in the qualifiction requiring 'Diploma' also stands asserted from the part of the employer. The comparative analysis of the duties and responsibilities was dealt with by the Tribunal based on the materials on record. The relevant portion as contained in the last portion of paragraph No. 6 of the order passed by the Tribunal is OPCAT 154/2017 10 ## extracted below: “ The applicant as RTO is handling 9 inhouse and 34 grant-in-aid MLR programmes and is also in-charge of stores which is more than any other Senior Technical Assistants duties and responsibilities. Further, the applicant was recommended by the CMLRE for the award for best employee and was awarded the same for the year 2013. The required qualification for TA/STA is a graduate in science or diploma. The applicant is a graduate in Information Technology and a qualified telegraphist from the Indian Navy. The principle of equal pay for equal work has been considered and held in various decisions by the Hon'ble Supreme Court of India, which further strengthens the position that the individuals who are doing equal work shall be entitled to equal remuneration. Th term equal pay includes basic salary and also other benefits.” 9. After further discussion as given in para. 10, the Tribunal has dealt with the position in detail again in paragraph 11, which is reproduced below for convenience of OPCAT 154/2017 11 ## reference.: “The applicant is capable of holding the post of STA and has in addition to radio telephony, been looking after the Computer Centre/Data Centre. The applicant cites GOI orders and directions for absorbing the isolated posts into the organized services/cadre whenever the duties of such posts have relevance to service posts. Applicant is looking after 20+14 grant-in-aid programmes, whereas other STAs are looking after 5+14 and 3+9 grant-in-aid programmes. So it is not a case that applicant is doing less work than other STAs. On perusal of job description of STA provided in para 16 of the O.A., it is noted that it is varied and diverse covering different areas of technical operation. The applicant's post can be re-designated as STA 4 with duties of radio telephony, ITIS, grant-in-aid programmes, MLR technology development, store-in-charge, etc. as the respondent deems fit. Hence, there appears to be sufficient functional reasons to encadre the RTO post of applicant in the STA cadre by re-designating his post as STA Radio Telephone which will continue to ensure future OPCAT 154/2017 12 recruitment of persons with radio telephone qualifications. The job description can be drafted to fit all the additional duties he is currently performing. The applicant states that he possesses the educational qualification for the post of STA. If so, there cannot be any impediment with regard to the qualification required.” 10. From the above, it is quite clear that the applicant was discharging duties to a higher extent than the others, which was exactly similar in nature, on the strength of his qualification to hold the post. It is despite the acceptance of the factual position and the recommendations made by the employer/the 3[rd] petitioner herein, that the said petitioner also joined hands with the other petitioners, to challenge the order passed by the Tribunal. Virtually the factual assertion and recommendations made by the employer/3[rd] petitioner have been accepted by the Tribunal, to take the proceedings to a logical conclusion, which exercise actually ought to have been done by the Central Pay Commission, OPCAT 154/2017 13 who however left it to be dealt with by the Ministry. The Ministry, on the other hand, dealt with the issue in a quite casual manner, without any regard to the actual facts and figures. It is in the said circumstance, that the task was undertaken by the Tribunal, taking pains, leading to Ext.P5 order and granting the relief to the limited extent as mentioned above. We do not find any tenable ground to call for interference. The Original Petition fails and it is dismissed accordingly. **Sd/P.R. RAMACHANDRA MENON JUDGE** ## **Sd/-** **SHIRCY V. JUDGE** **ks.** True copy P.S. (Hr.Gr.)To Judge OPCAT 154/2017 14