इस फैसले ने यकीनन हम सभी को निराश किया है. अब, आगे क्या किया जा सकता है, इस विषय में हम लोग भी विशेषज्ञों से राय ले रहे हैं और आप सबकी राय भी आमंत्रित है.
Tuesday, 4 August 2015
प्रिय मित्रो, कैट के अादेश की प्रति आप सबके ध्यानार्थ प्रस्तुत है. अब इसे न्याय कहा जाए या कुछ और आप स्वयं तय कर सकते हैं. यह एक बेहद निराशाजनक और अप्रत्याशित फैसला है. और सबसे आश्चर्य की बात यह है कि कैट ने न तो अनुवादकों के दावे को खारिज किया और न ही अनुवादकों के पक्ष में फैसला दिया. बल्कि इस मामले में प्रतिवादी पक्ष को इस मामले को 7वें वेतन आयोग को संदर्भित करने के आदेश दिए हैं और आशा व्यक्त की है कि 7वां वेतन आयोग विभिन्न ट्रिब्यूनल, उच्च न्यायालयों और सर्वोच्च न्यायालय के आदेशों का सम्मान करेगा. यह समझ से परे है कि 7वां वेतन आयोग किस प्रकार छठे वेतन अायोग के उपरांत सरकारी आदेशों से उत्पन्न हुई विसंगतियों को दूर करेगा ?
अादेश का अंतिम पैरा कहता है
"Having regard to the law declared by the Honble Supreme Court (ibid), we dispose of the present Original Application with direction to the respondents to refer the grievance of the applicants regarding their grade pay to the 7th CPC for its recommendation. We are sanguine while giving its report, the Pay Commission will give due regard to the Orders of the Tribunal, Honble High Courts and the Apex Court, relied upon the learned counsels for the parties. No costs."
इस फैसले ने यकीनन हम सभी को निराश किया है. अब, आगे क्या किया जा सकता है, इस विषय में हम लोग भी विशेषज्ञों से राय ले रहे हैं और आप सबकी राय भी आमंत्रित है.
आदेश्ा की प्रति
Central Administrative Tribunal
Principal Bench, New Delhi
Order reserved on 8th July, 2015
Order pronounced on 23rd July, 2015
Honble Mr. A.K. Bhardwaj, Member (J)
Honble Dr. B.K. Sinha, Member (A)
1. Saurabh Arya, aged about 31 years
s/o late Mr. Ishwar Chander Arya
r/o H.No.J-2, Gali No.8
Pandav Nagar (near Akshardham Temple)
2. Vishakha Bisht, aged about 34 years
w/o Mr. Rohit Bisht
r/o H.No.876, Sector 3
R K Puram, New Delhi-22
3. Poonam Vimal, aged about 30 years
d/o Mr. Ram Kumar Vimal
r/o E-11, Second Floor
Siddharth Nagar, New Delhi-14
4. Pandey Rakesh, aged about 40 years
s/o Mr. Pandey Bidhushekhar
r/o H.No.493/7, Pushpa Vihar
5. Om Prakash, aged about 42 years
s/o Mr. Fakirey Ram
r/o R P 775 Rangpuri
(Mr. Rajshekhar Rao, Advocate)
1. Union of India through the Secretary
Department of Official Language
Ministry of Home Affairs
NDCC-II (New Delhi City Centre)
B Wing, Fourth Floor, Jai Singh Road
2. Department of Expenditure
Through its Secretary
Ministry of Finance
North Block, New Delhi-1
(Mr.Rajinder Nischal and Mr. Ashish Nischal, Advocates)
O R D E R
Mr. A.K. Bhardwaj:
In the present Original Application filed under Section 19 of the Administrative Tribunals Act, 1985, the applicants have sought a declaration that the Junior Translators of CSOLS are entitled to the benefit of the decision of this Tribunal (Ernakulam Bench) in T.P. Leena v. Union of India & others (O.A. No.107/2011) decided on 27.9.2011. The prayer made in the Original Application reads thus:-
(a) Declare that the Junior Translators of CSOLS are entitled to benefits of the decision of the CAT Ernakulam in O.A. NO.107/2011 titled as T.P. Leena vs. Union of India & Ors.
(b) Declare that the Petitioners are entitled to grade pay of Rs.4,600 in terms of the O.M. dated 13.11.2009 w.e.f. 01.01.2006;
(c) Direct the Respondents pass suitable orders to revise the pay of the Applicants to the pay band of Rs.9,300 34,800 with grade pay of Rs.4,600 w.e.f. 01.01.2006 and consequential orders;
(d) Direct the Respondents pay to the Applicants the arrears of pay consequent to such fixation of grade pay;
(e) Pass such other further order (s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case and in the interest of justice.
2. During the course of the arguments, learned counsel for applicants submitted that in the aforementioned case a Division Bench of this Tribunal ruled that the Junior Hindi Translators are entitled to the pay scale of Rs.7450-11500 and the Order has been upheld by the Honble High Court and finally by the Honble Supreme Court. He also made reference to the Order dated 14.10.2013 passed by the Full Bench of this Tribunal (Ernakulam Bench) in P.R. Anandvally Amma v. Union of India & others (O.A. No.656/2012 with connected case).
3. On the other hand, learned counsel for respondents submitted that before 1.1.2006 the post of Junior Hindi Translator (CSOLS), Assistant (CSS) and Stenographer Grade C (CSSS) were in the pay scale of Rs.5500-9000 and the 6th CPC placed the same in the revised pay scale of Rs.6500-10500 w.e.f. 1.1.2006. According to learned counsel, no parity could be drawn between Junior Hindi Translators (CSOLS) and Assistant (CSS). Finally, he submitted that O.M. No.1/1/2008-IC dated 13.11.2009 could be applied only in such cases where the posts were in pre-revised scale of Rs.6500-10500 and in the present case, the pay scale of Rs.6500-10500 was the revised pay scale of Junior Hindi Translator given pursuant to the recommendations of the 6th CPC and the pay scale was identified only notionally to fix the pay of the applicants correctly in the Pay Band recommended by the 6th CPC.
4. Relying upon the interlocutory order dated 8.8.2014 passed by the Honble Supreme Court, he submitted that the Honble High Court of Kerala at Ernakulam in Union of India & others v. M.V. Mohanan Nair (O.P. (CAT) No.2000/2013) had taken the view akin to one taken in Union of India & others v. T.P. Leena (supra), but finally the Apex Court stayed the Order.
5. With reference to the judgment of Honble Supreme Court in S.C. Chandra & others v. State of Jharkhand & others, AIR 2007 SC 3021, the learned counsel submitted that granting the pay scale is purely an Executive function and Courts should not interfere with the same, as it may have a cascading effect creating all kinds of problems for the Government and authorities. Paragraphs 23 to 28 of the said judgment read thus:-
23. In Federation of All India Customs and Excise Stenographers (Recognized) and Ors. v. Union of India and Ors.  3 SCR 998 , this Court observed:
In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula.
24. It may be mentioned that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. V. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007)1SCC408 .
25. There is broad separation of powers under the Constitution, and the judiciary should not ordinarily encroach into the executive or legislative domain. The theory of separation of powers, first propounded by the French philosopher Montesquieu in his book `The Spirit of Laws' still broadly holds the field in India today. Thus, in Asif Hameed v. State of Jammu and Kashmir:  3 SCR 19 a three Judge bench of this Court observed (vide paragraphs 17 to 19):
17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.
18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356 US 86 observed as under:
All power is, in Madison's phrase, "of an encroaching nature". Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint....
Rigorous observance of the difference between limits of power and wise exercise of power-between questions of authority and questions of prudence-requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do.
19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its self-imposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers.
26. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).
27. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal v. Tarun K. Roy and Ors. MANU/SC/0945/2003 : (2004)ILLJ421SC .
28. Similarly, in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association MANU/SC/0576/2002 : SUPP1SCR118 , the principle of equal pay for equal work was considered in great detail. In paragraphs 9 & 10 of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge. Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and Ors. v. Pradip Kumar Dey (2000) 8 SCC 580.
6. We heard the learned counsels for the parties and perused the record.
7. As far as the Order passed by the Tribunal in the case of T.P. Leena (supra) is concerned, in the said case, the issue before the Tribunal was fixation of pay on 1st and 2nd financial upgradations under the Modified Assured Career Progression (MACP) Scheme, which came into existence on 1.9.2009 and the pay scale of Junior Hindi Translator was noted as a matter of fact only. Though the Full Bench of this Tribunal (Ernakulam Bench) in P.R. Anandvally Amma v. Union of India & others (O.A. No.656/2012 with connected case) decided on 14.10.2013 could declare that the Junior Hindi Translators are entitled to the Grade Pay of Rs.4600/- but despite our repeating asking, learned counsel for applicants could not point out any reasoning or analysis for such view of the Tribunal. The only plausible reasoning can be the decision in O.A. No.107/2011 (supra), which is confirmed by the Honble High Court of Kerala at Ernakulam in O.P. (CAT) No.467/2011 (supra). Nevertheless, as has been noted above, in the said case also, the controversy involved was regarding the pay scale in which the Junior Hindi Translators were entitled to financial upgradations. In the said Original Application, the pay scale of Rs.6500-10500 was noted as pre-revised pay scale of the Junior Hindi Translator, while such was only the revised identified pay scales of Junior Hindi Translator for the purpose of fixation of pay pursuant to the recommendations of the 6th CPC and the actual revised pay scale of Junior Hindi Translator was only Rs.5500-9000.
8. As has been ruled by Honble Supreme Court in OMA @ Omprakash & another v. State of Tamil Nadu, AIR 2013 SC 825, judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial precedents and Judge shall not do anything which will undermine the faith of the people. Paragraph 9 of the said judgment reads thus:-
19. Learned trial judge has also opined that the imposition of death sentence under Section 396 of the Indian Penal Code is the only weapon in the hands of judiciary under the prevailing law to help to eliminate the crime. Judiciary has neither any weapon in its hands nor uses it to eliminate crimes. Duty of the judge is to decide cases which come before him in accordance with the constitution and laws, following the settled judicial precedents. A Judge is also part of the society where he lives and also conscious of what is going on in the society. Judge has no weapon or sword. Judge's greatest strength is the trust and confidence of the people, whom he serves. We may point out that clear reasoning and analysis are the basic requirements in a judicial decision. Judicial decision is being perceived by the parties and by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts based on settled judicial precedents and judge shall not do anything which will undermine the faith of the people.
9. In Hindustan Times Ltd. v. Union of India & others, (1998) 2 SCC 242, a two-Judge Bench of the Apex Court referred to an article On Writing judgments', by Justice Michael Kirby of Australia (1990) 64 ALJ 691) wherein it has been highlighted, apart from any facet that the legal profession is entitled to have, it demonstrated that the Judge has the correct principles in mind, has properly applied them and is entitled to examine the body of the judgment for the learning and precedent that they provide and further reassurance of the quality of the judiciary which is the centre-piece of our administration of justice. Thus, the fundamental requirement is that a Judge presiding over a criminal trial has the sacrosanct duty to demonstrate that he applies the correct principles of law to the facts regard being had to the precedents in the field.
10. Even otherwise also, it is also well settled law that judicial precedent cannot be followed as a statute and need to be applied with reference to the facts of the case involved in it. In Collector of Central Excise, Calcutta v. M/s Alnoori Tobacco Products & another, 2004 (6) SCALE 232, it has been held thus:
12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed:
"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."
13. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord Atkin's speech.....is not to be treated as if it was a statute definition It will require qualification in new circumstances." Megarry, J in (1971) 1 WLR 1062 observed: "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said:
"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
14. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."
11. In T.P. Leena (supra), the ratio decidendi was in what pay scale the Junior Hindi Translators were entitled to financial upgradations and the pre-revised pay scale of Junior Hindi Translators, noted by the Tribunal in the said case, was followed by the Full Bench as ratio decidendi and directions were given that the Junior Hindi Translators would be entitled to Grade Pay of Rs.4600/-.
12. Though in the aforementioned factual and legal backdrop there is lot left to be answered on the question whether the Order of the Full Bench of the Tribunal can be followed as binding judicial precedent. Nevertheless, we refrain from commenting upon the proposition and prefer to follow the law declared by the Apex Court in Indian Drugs & Pharmaceuticals Ltd. v. Workmen, Indian Drugs and Pharmaceuticals Ltd., (2007) 1 SCC 408, noted in S.C. Chandras case (supra), wherein it has been ruled that granting the pay scale is purely an Executive function and Courts should not interfere with the same, as it may have a cascading effect creating all kinds of problems for the Government and authorities.
13. In view of an established maxim boin judicis east lites dirimere ne lis ex lite ortiure, et interest reipublicae ut sint fines litium, a duty is cast upon the court to bring litigation to an end or at least ensure that if possible, no further litigation anises from the case pending before the court in accordance with law. So once we have aforementioned judgments of Honble Supreme Court before us, we need to follow the same. In Special Land Acquisition Officer v. Karigowada & others, (2010) 5 SCC 708, it has been held as follows:
79. .An established maxim "Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint fines litium", casts a duty upon the Court to bring litigation to an end or at least endure that if possible, no further litigation arises from the cases pending before the Court in accordance with law. This doctrine would be applicable with greater emphasis where the judgment of the Court has attained finality before the highest Court. All other Courts should decide similar cases particularly covered cases, expeditiously and in consonance with the law of precedents. There should be speedy disposal of cases particularly where the small land owners have been deprived of their small land-holdings by compulsive acquisition. Any unnecessary delay in payment of the compensation to them would cause serious prejudice and even may have adverse effect on their living. In these circumstances, we consider it necessary to issue appropriate directions to the State authorities and request the Courts, where cases are pending arising from the same notification, to dispose of the pending proceedings without any further delay
Since by now the 7th CPC is in place, it would be proper to leave it to the Commission to take a view regarding entitlement of the applicants for any particular pay scale/grade pay.
14. Having regard to the law declared by the Honble Supreme Court (ibid), we dispose of the present Original Application with direction to the respondents to refer the grievance of the applicants regarding their grade pay to the 7th CPC for its recommendation. We are sanguine while giving its report, the Pay Commission will give due regard to the Orders of the Tribunal, Honble High Courts and the Apex Court, relied upon the learned counsels for the parties. No costs.
( Dr. B.K. Sinha ) ( A.K. Bhardwaj )
Member (A) Member (J)