Union of India v. K K Jose & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** ## **OP (CAT).No.2948 OF 2013(Z)** **AGAINST THE ORDER IN OA NO.532/2011 DATED 06-02-2013 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH** ## **PETITIONER/S:** - **1 UNION OF INDIA REP BY THE SECRETARY, MINISTRY OF PERSONNEL PUBLIC GRIEVANCES AND PENSIONS, DEPARTMENT OF PERSONNEL & TRAINING, NEW DELHI-110011.** - **2 THE SECRETARY MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI.** - **3 THE PRINCIPAL REGISTRAR CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH, 61/35, COPERNICUS MARG, NEW DELHI-110001** **BY ADVS. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA SHRI.P.VIJAYAKUMAR, ASG OF INDIA** ## **RESPONDENT/S:** - **1 K K JOSE, PRIVATE SECRETARY, CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKUALM BENCH, KALOOR-COCHIN-682017 [RETD], RESIDING AT PLAMPARAMBIL HOUSE, H. NO.34, EASTERN VILLAS, POST CSEZ, KAKKANAD, ERNAKULAM, KOCHI-682037.** OP (CAT).No.2948 OF 2013(Z) 2 **2 T R SIVAKUMAR PRIVATE SECRETARY,CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKUALM BENCH, KALOOR-COCHIN-682017 AND NOW DEPUTY REGISTRAR, CAT, CALCUTTA BENCH, 11TH AND 12TH FLOOR, 2ND MSO BUILDINGS, NIZAM PALACE, 234/4A, JC BOSE ROAD, KOLKATA-700020.** - **3 C V RAMESAN** **PRIVATE SECRETARY, CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKUALM BENCH, KALOOR, COCHIN-682017** ## **R1-3 BY ADV. SRI.S.RADHAKRISHNAN** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 11-11-2019, THE COURT ON 16-11-2019 DELIVERED THE FOLLOWING:** OP (CAT).No.2948 OF 2013(Z) 3 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The petitioner is the Union of India and the challenge is against the direction of the Tribunal in an original application filed by the Private Secretaries in the Tribunal, to upgrade the requisite number of post of Private Secretaries to that of Principal Private Secretary in consonance with the number of the Members of the Central Administrative Tribunal [for brevity, the 'CAT']. The up-gradation was directed to be as is granted in the Central Secretariat Stenographers' Service [for brevity, 'the CSSS']; by the impugned order.** ## **2. The applicants before the Tribunal filed the OA with the following reliefs:** _**“1. Call for the records connected with the case.**_ ## _**2. Declare that the Private**_ OP (CAT).No.2948 OF 2013(Z) 4 _**Secretaries of CAT had already been equated with the Private Secretary of CSSS by the Principal Bench of the CAT and it was upheld by the Apex Court.**_ _**3. Declare that the PS of the CAT are entitled to get the same treatment as the PS of the CSSS.**_ _**4. Declare that each Hon'ble Member of the CAT is entitled to get one Principal Private Secretary and one Stenographer Gr.C, as per Annexure A3.**_ _**5. Direct the respondents to promote eligible and qualified PS to the post of Principal Private Secretary as has been done in the case of CSSS by upgradation of the post.**_ _**6. Direct the respondents to extend the scheme of upgradation of post of PS in CSSS to the post of Principal Private Secretary in CAT on the same terms and conditions.”**_ **The claim of the applicants was to upgrade the posts of Private Secretaries to Principal Private Secretaries, in the manner in which the same was done in the CSSS. As a consequence of the declaration sought that each Member of the CAT is** OP (CAT).No.2948 OF 2013(Z) 5 **entitled to get one Principal Private Secretary and one Stenographer as per Annexure-A3. We are at a loss to understand how the requirements of the Members of the CAT can be addressed by the Private Secretaries and as to what difference it makes, to the Members, insofar as the Grade or pay scale of the Stenographers attached to them.** **3. We notice the averments also, which proceed on the basis of the amendment in the year 2006 brought to the Administrative Tribunals Act, 1985 [for brevity, 'the Act of 1985'] which allegedly equated the Hon'ble Members of the CAT, with High Court Judges. The amendment specifically is stated to be the incorporation of Section 8(3) to the Act of 1985, which reads as follows:** _**“The conditions of service of Chairman and Members shall be the same as applicable to Judges of the High Court.”**_ **We immediately notice that this is not in the nature of equation of posts, on which aspect the** OP (CAT).No.2948 OF 2013(Z) 6 **Tribunal has laboured unnecessarily in the order. The Tribunal has looked at the various decisions of the Hon'ble Supreme Court to find that the Members of the Tribunal are equated with the High Court Judges and hence they are entitled to the same privileges of the High Court Judge. The privilege has been asserted to grant a promotional avenue to the Private Secretaries.** **4. We notice** _**L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]**_ **, in which the Hon'ble Supreme Court held that “the Tribunals are an alternative institutional mechanism for judicial review and hence must be no less efficacious than the High Court”. The observations made in the extract as seen from page 13 of the order of the Tribunal is to ensure that competent persons with judicial approach and objectivity are appointed to the Tribunals. It has been stated “what is needed in the Tribunal, which is intended to supplant the** OP (CAT).No.2948 OF 2013(Z) 7 **High Court, is legal training and experience, and judicial acumen, equipment and approach”. This does not, by a corollary, indicate that the Stenographers assigned to a High Court Judge or a Tribunal should have the same grades and the same pay scales; with which the Judges and the Members of the Tribunals, unless judicially called upon to decide on such issue, are not concerned with. The essential grievances of the applicants was that there was no adequate promotional avenues in their cadre. If there are no additional promotional avenues, that was taken care of earlier by an Assured Career Progression Scheme and later by a Modified Assured Career Progression Scheme. We find that the order of the Tribunal, directing upgradation, as has been done in the case of the CSSS, to be not proper. It is a decision of the Government, which also has to be effected looking at the recommendations of the successive Pay** OP (CAT).No.2948 OF 2013(Z) 8 ## **Commissions appointed.** **5. Parity in employment and equation of posts is a policy decision of the Government and the application of the principles of equal pay for equal work depends on a lot of factors. In** _**State Bank of India Vs. M.R. Ganesh Babu (2002) 4 SCC 556 it was held so:**_ _**16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallised and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the**_ OP (CAT).No.2948 OF 2013(Z) 9 _**work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court.**_ **6. We allow the original petition vacating the order of the Tribunal, but make it clear that this does not preclude the Government in deciding upon such up-gradation taking all matters into consideration, if a representation on that behalf is filed before the Government. The setting aside of the order of the Tribunal, in this judgment, shall not be taken as interdicting such up-gradation, if the Government feels otherwise. Nor shall the reservation herein above, for consideration of a representation, if any** OP (CAT).No.2948 OF 2013(Z) 10 **filed, be taken as a direction to grant such upgradation. We make it clear that it is the absolute discretion of the Government. The parties** **are left to suffer their costs.** ## **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** **V.G. ARUN, JUDGE.** **//True Copy//** **P.A. To Judge** **sp/13/11/19** OP (CAT).No.2948 OF 2013(Z) 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**TRUE COPY OF THE CAT (PRINCIPAL PRIVATE**| |---|---| ||**SECRETARY) RECRUITMENT (AMENDMENT) RULES,**| ||**1998.**| |**ANNEXURE A2**|**TRUE COPY OF THE ORDER NO.A11013/26/2003AT**| ||**DATED 09/02/2005.**| |**ANNEXURE A3**|**TRUE COPY OF THE OM NO.10/03/2004-CS-II (PT**| ||**VII) DATED 28/10/2005.**| |**ANNEXURE A4**|**TRUE COPY OF THE OM NO.10/3/2004-CS-II(PT**| ||**III) DATED 18/11/2005.**| |**ANNEXURE A5**|**TRUE COPY OF THE OM NO.13/1/2006-CS-II**| ||**DATED 06/04/2009.**| |**ANNEXURE A6**|**TRUE COPY OF THE OM NO.20/51/2008-CS-II**| ||**DATED 20/03/2009.**| |**ANNEXURE A7**|**TRUE COPY OF THE ORDER NO.20/51/2009-CS-II**| ||**DATED 27/01/2011.**| |**ANNEXURE A8**|**TRUE COPY OF THE ORDER NO.20/51/2009-CS-**| ||**II(A) (VOL.II) DATED 25/02/2011.**| |**ANNEXURE A9**|**TRUE COPY OF THE ORDER PASSED BY CAT,**| ||**PRINCIPAL BENCH IN CP NO.405/2003 IN OA**| ||**777/92 DATED 30/04/2004.**| |**ANNEXURE A10**|**TRUE COPY OF THE REPRESENTATION DATED**| ||**06/11/2009 SUBMITTED BY THE 2ND APPLICANT.**| |**EXHIBIT P1**|**TRUE COPY OF THE ORIGINAL APPLICATION NO**| ||**532 OF 2011 ALONG WITH ITS ANNEXURES FILED**| ||**BY THE RESPONDENT**| |**EXHIBIT P2**|**TRUE COPY OF THE REPLY STATEMENT FILED BY**| ||**THE PETITIONERS IN ORIGINAL APPLICATION NO**| ||**532 OF 2011**| OP (CAT).No.2948 OF 2013(Z) 12 ## **EXHIBIT P3** **TRUE COPY OF THE REJOINDER TO THE REPLY STATEMENT FILED BY THE RESPONDENTS IN ORIGINAL APPLICATION NO 532 OF 2011** **EXHIBIT P4** **TRUE COPY OF THE ORDER DTD 6/2/2013 IN OA NO 532/2011 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL ,ERNAKULAM** **EXHIBIT P5 TRUE COPY OF THE M/O FINANCE'S OM NO 7(18)E(CO-ORD)/91 DTD 16/9/1991** **EXHIBIT P6 TRUE COPY OF THE DEPT OF EXPENDITURE'S O M NO 7(1)E-COORD/2012 DTD 31/5/2012** **EXHIBIT P7** **TRUE COPY OF THE M/O.FINANCE O M NO 7(4)ECOORD/88 (PT)DTD 5TH JUNE 1990**