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
O.A. No.166/2014
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)
New
Delhi-92
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
New
Delhi-17
5. Om
Prakash, aged about 42 years
s/o Mr.
Fakirey Ram
r/o R P
775 Rangpuri
New
Delhi-37
.. Applicants
(Mr. Rajshekhar Rao, Advocate)
Versus
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
New Delhi-1
2. Department
of Expenditure
Through its Secretary
Ministry of Finance
North Block, New Delhi-1
..Respondents
(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. [1988] 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: [1989] 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.
(Emphasis supplied)
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 : [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)
/sunil/
