UOI & Ors v. Mahender Singh Rana

PRADEEP NANDRAJOG, J. For orders see WP(C) No.2071/2007. SEPTEMBER 07, 2010 dk -r-74d (PRADEEP NANDRAJOG) JUDGE Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. * IN THE HIGH COURT OF DELHI AT NEW DELHI % /udqment Reserved On: 11th August, 2010 tudqment Delivered On: 07th September, 2010 + W.P.(C) N0.2071/2007 UOI & ANR. ..... Petitioners Through: Mr.Gaurang Kanth and Mr.Biji Rakesh, Advocate. versus SANJAY KUMAR & ORS. . .... Respondents Through: Mf.A.K.Bhardwaj, Advocate. W.P.(C) N0.2094/2007 UOI & ANR. Through: ..... Petitioners Mr.Rajeev Sharma, Mr.Abhishek Birthray, Advocates. versus MAHENDER SINGH RANA ..... Respondent Through: Mr.A.K.Behera. and· Ms.Meenu Mainee, Advocates. W.P.(C) N0.2095/2007 UOI & ANR. Through: . .... Petitioners Mr.Rajeev Sharma, Mr.Abhishek Birthray, Advocates. versus LALIT KUMAR PAWAR & ORS. . .... Respondents Through: Mr.A.K.Behera and Ms.Meenu Mainee, Advocates. W.P.(C) N0.3410/2010 DIRECTOR GENERAL DOORDARSHAN ...... Petitioner Through: Mr.Rajeev Sharma, Mr.Abhishek Birthray, Advocates. versus W.P.(C) No.2071/07, 2094/07,2095/07 & 3410/2010 Page 1 of8 • ' NEERAJ BHANOT . ·.Through: .... :Respondent Mr.A.K.Bhardwaj, Advocate . CORAM: . HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG

¶1Whether the Reporters of local papers may be allowed to see the judgment?

¶2To be referred to Reporter or not?

¶3Whether the judgment should be reported in the Digest? PRADEEP NANDRAJOG, ).

¶1· Relevant dates may be noted.

15.9.1997 is the date when the Prasar Bharti (Broa.dcasting Corporation 'of India) Act 1990 was notifi~d with 23.11.1997 being, notified as the appointed date being the date where from the erstwhile Civil Servants under the Union of India in the Ministry of Information & Broadcasting were to be treated as on deputation with Prasar Bharti. It be noted that activity of broadcasting through the visual and audio media i.e. radio and television which hithertofore was with the Union Government was transferred to a statutory corporation. Vid~ Section 11 of the Act these employees could opt for service under Prasar Bharti failing which they were to be treated as Central Government Employees and on deemed deputation with Prasar Bharti.

¶2Issues arose, as they usually do in India, and in particular when the Government tries to corporatize itself. The reason is obvious, as Civil Servants Constitutional Protections are available and as employees of statutory corporations only statutory protections as per the relevant statute are applicable. Besides, the lazy are wary of corporatization for W.P.{C} No.2071/07, 2094/07, 2095/07 & 3410/2010 Page 2 of8 corporatization brings along the corporate culture of work ethics.

¶3Thus, the Central Government Employees in the Ministry of Information & Broadcasting did not opt for service under P_rasar Bharti and negotiations were held between the Management and the Union to break the impasse. With effect from 25.2.1999 Prasar Bharti decided that employees of the Ministry of Information & Broadcas~ing working under it, on permanent absorption under Prasar .Bhati would be given · wages in the scale Rs.6500-10500 · as against the scale Rs.5000-8000 which was their entitlement as employees of the Ministry of Information & Broadcasting.

¶4As time went by, appointments and recruitments as also crystallization o( variqus rights, the origin whereof .is the point of time when television and radio was under the Central Government, gave birth to righ~s.

¶5The respondents in the four captioned petitions can be classified into three distinct groups and their cases considered accordingly. Cateqorx-1: Casual workers working for long as employees of the Ministry of Information & Broadcasting who.se right for regulariza~ion/confirmation as per. policy framed by the Central Government matured on various dates after 23.11.1997 i.e. the appointed date after Prasar Bharti Act was promulgated on 15.9.1997. They claimed entitlement to be placed in the same scale of pay in which erstwhile employees of the Central Government working in the Ministry of Information & Broadcasting were placed as employees of Prasar Bharti. Category-'ll: Employees who were selected as per select list notified prior to 15.9.1997 but were given employment after 23.11.1997 by Prasar Bharti. They claimed entitlemen't to b~ placed in the same scale. of pay in which persons in the same select .list but given appointment W.P.(C) No.2071/07, 2094/07, 2095/07 & 3410/2010 prior to 15.9.1997 were placed. Category-Ill: Employees whose process of employment commenced in january 1999 when Prasar Bharti was constituted and w~re given appointment thereafter. They claimed pay parity with their counterparts claiming that they should be placed in the same scale of pay as persons holding same posts.

¶6Facts which had given birth to the respective claims are .that employees of the Central Government working in the Ministry of Information & Broadcasting were not opting for service under Prasar Bharti and probably by way of incentive were given a higher pay scale. Since in all the writ petitions we are conce.rned with employ~es appointed to the post of Assistant Engineers. Production Assistants, etc. it. may be. ~- ~ noted that erstwhile Central Government employees working in the Ministry of Information & Broadcasting and ar?PC?inted as Assistant ·Engineer:s, Production Assistant etc. were placed in the scale Rs.6500-10500 but to others holding similar posts pay scale offered was Rs.5000-8000. The claim of all the respondents has succeeded before the Tribunal. The Tribunal· has _held that persons ~aiding same posts cannot be discriminated vis-a-vis the scale of pay in wJ:lich they have to be placed.

¶7Let us highlight the factual and legal basis of the claim for parity urged by the three categorie~ of employees.

¶8Employees in Category-! i.e. those who were working as casual employ~es for long under the Ministry of Information & Broadcasting claimed that there was a policy framed by the Central Government to regularize their services in a phased manner and this right enured in their fa.vour when Prasar Bharti was constituted on 15.9.1997. Merely because they acquired status as regular employees under Prasar Bharti was no. ground to j~stify they being placed in the scale W.P.(C) No.2071/07, 2094/07, 2095/07 & 3410/2010 Page 4 of8 Rs.5000-8000 and their counterparts who were regular employees under the Ministry of Information & Broadcasting being placed in the pay scale of Rs.6500-10500. To which the. answer of the petition~rs was that higher scale of pay was given to the erstwhile regular employees ·of Ministry of Information & Broadcasting as they were on deemed deputation and on being taken as regular employees under Prasar Bharti were _paid higher wages. In other word_s the petitioners urg~d that erstwhile employees of Ministry of Information & Broadcasting formed a separate category vis-a-vis those who were appointed by Prasar.Bharti.

¶9Qua employees in ~ategory-11 the argument of said employees was that the appointment process commenced when the Ministry of Information & Broadcasting invited applications from eligible candidates and the select list was prepared by the Ministry of Information & Broadcasting. Their na.mes found mention in the select list drawn much prior to

15.9.1997. But for the fortuitous fact that character verification of some was completed prior to 15~9.1997 while for them was compJeted post 15.9.1997 thereby resulting in some being given le.tters of . appointment by ·the Ministry of Information & Broadcastil)g and they by Prasar Bharti. would not entitle the petitioners to place the former in the pay scaie Rs.6500-10500 and the latter in the pay scale Rs.5000-8000. The response of the petitioners was the same as that to the employees of Category-! i.e. the employees who came to Prasar Bharti from under the Mif)istry of Information & Broadcasting formed a separate category.

¶10Qua employees in Category-Ill in respect of whom selection process commenced in the year 1999 i.e. much after.

23.11.1997 and was completed obviously thereafter, they urged that employees doing similar work and holding· sim~lar W.P.(C) No.2071/07, 2094/07, 2095/07 & 3410/2010 Page 5 of8 ·~ -l-- \ posts could not be _discriminated qua the pay scale in which they had to be. placed. The response of the petitioners was t.he · same .as that to the employees of Category-! i.e. the employees who came to· Prasa_r Bharti from under_ the Ministry of lnformatior:-a & Broadcasting formed a separate category.

¶11The issue of equal pay for e.qual work and employees holding same posts under the same employer requiring same pay scales to be applied is no longer res integra. We eschew reference to various authorities where parity is claimed by employees in different departments under the Union, for the reason different issues arise for consideration therein, but note only two decisions. where employees in the same dep~rtment were sought to be placed in different 'scales of pay, notwithstanding the· employees ·holding identical posts. and doing same jobs. In the decision reported as 1987 (1) SCC 582 Telecommunication Research Centre Scientific Officers (Class-!) Association & Ors. vs. UOI & Ors. the employees were sought to be placed in two categories. Category-! was employees directly recruited as officers in the Telecommunication Research Centre, a Department of the Post & Telegraph Wing directly under the control of the Post & Telegraph Board of the Ministry of · Communication and the second category being employees who came on transfer in the said department but employed under the Indian Telecommunication Service Group-A and Group-B Posts. Two issues were urged before the Supreme Court by the directly recruited employees vis-a-vis the transferred employees. First pertained to denial of promotional opportunities and the second with respect to a special pay being paid:to the transferred employees.· Qua the plea of denial of promotional opportunities, the Supreme Court, in the absence of adequate pleadings, declined to W.P.(C) No.2071/07, 2094/07,2095/07 & 3410/2010 Page 6 of8 answer the question, but on the issue of parity of pay held that for employees holding same post and doing same work and there being no ground to classify the same in two categories, the placement in different scales of pay was arbitrary. It was noted that the technical and educational qualifications required for both group of employees was the same. Thus, it was directed that both groups be paid the same wages.

¶12In a somewhat different factual setting, in the decision reported as 1987(1) SCC.592 M.P.Sinqh vs. UOI & Ors. it was held that where employees enter the cadre from two different sources, if they do the same work and are similarly placed, there can be no discrimination in payment of wages.

¶13Of course, employees in the same cadre c~m certainly be place9 in pifferent pay scales but that would be if it is shown that one set of employees has higher technical or education qualifications or performs more onerous duti~s vis-a-vis the other or the like. But, where there is complete parity . . it would be highly discriminatory to treat err:tployees differently merely on account ·of the two coming from two different sources.

¶14Holding so .in favour of the respondents,. let us· see the plea put up as a justifiable excuse by the petitioners to place the respondents in a lower scale of pay.

¶15. To the Category-! employees i.e. those working on casual basis under the Central Government but confirmed against regular posts under Prasar Bharti, suffice would it be to state that the claim for regularization pertained to a policy of . the Central ·Government and merely because some got . . ' confirmed under the Central Government and some got confirmed under Prasar Bharti would not result in two groups being formed. Thus, apart from the principle that employees holding same posts and doing same duties cannot be W.P.(C) No.2071/07, 2094/07, 2095/07 & 3410/2010 Page 7 of8 · \ discriminated in matters pertaining to wages with reference to ' . the source of appointment, we find no justifiable cause to treat Category-! employees as forming a different and a distinct category.

¶16·To the Category-11 emp_loyees, ~uffice would it be to that their empanelment was under the Central state Government and admittedly some employees under the same panel were inducted by the Central Government and Prasar Bharti placed them in th~ scale of pay Rs.6500-10500. On the fortuitous circumstance. of some empanelled candidates not being able to have character verification completed prior to

27.11.1997 and thereby they being inducted as employees to the ~arne posts directly Uflder Prasar Bharti would not make them a distinct category vis-a-vis their. counterparts who were in the same select panel but were appointed by the Central Government.

¶17With respect to Category-Ill employees the principle of law noted by us in paras 11 and 12 above would apply.

¶18The writ petitions are found to be without any merit and hence are dismissed. However, since the is?ue raised was arguable, we refrain from imposing any cost . SEPTEMBER .07, 2010 dk .sotf-, (PRADEEP NANDRAJOG) JUDGE .sd/-- (MOOL CHAND GARG) . J.UDGE W.P.{C) No.2071/07, 2094/07, 2095/07 & 3410/2010 · Pag~ 8 of 8 ·. i,-. ,· •· ·Ft·on~· To The Registrar General ~~igh Court ofDelhi New·Delbi Decided

¶1The P1~incipal Registrar, Central Administrative Tribunal, Principal Bench, Copernicus · Jylarg, New Delhi.

¶2Union of India, through the Secretary to the Govt. of India, Ministry of Infon~~tion & Broadcasting; Shastri Bhawan, New f?elhi 1. Order dated 28.8.06:& 15.2.07 passed in O.A. No. 1462/05 & R.A. No. 27/07 ih W.P. (C) 2071/07 : Order dated 3 1'.5.06 & 25.1..07 passed in O.A. No, 1743/04 & R.A. No. 20/07 in W.P. (C) 2094/07 ·Order dated 7.9.09 & 12_.4.10 passed in O.A. No. 1462/95 &.R.A. No._ 27/07jn W.P. (C) 3410110_ ·. Order dated-31.5..06 & 25.1.07 passe.d in O.A: No. 174i/o4·& R.A: N~. 19/CJ7 in W.P. {C) 2095/07 . . WRI'f PETITION (CIVIL) NO. 2071/2007 . Union of I~dia & anr. .... ·.Petitionerfs" : . Vs. ~anjay Kumar & ors. . ... Respond~~~~ Sir, I. ' I am directed to forward herewith for information and' immediate compliance/nebessitry act1.gn a . . . . . :i . -~ . . .. ~ . ... copy ~f order dated_ 7.9.2010-pa~sed by Hon 1ble. Divis~o~ Bend1 qfthis Cou~ in the abov<i ~1oted <lase . alohgwith a copy of M_e1p.o of Parties. Please acknowledge rec_eipt. Yours;fai'thfuUy AB/.10.9.10 ~ -~f · . . Admn. ,Officer iAils;t Registrar (Wnis} U ~ for Registrar Gen.eral · . . ... ~ . .. . ~ ' J $-13 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 2094/2007 o/o UOI & ORS. Through versus MAHENDER SINGH RANA Through CORAM: ..... Petitioners None ..... Respondent None HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG ORDER

24.09.2010 CM No.l2823/2010 -----.__

¶1It has been brought to our notice that in the 7th and lOth line of /' r para 6 of our decision dated 07.09.2010 there finds a typographical error, being that, instead of the post being referred to as 'Engineering Assistant' same has been referred to as 'Assistant Engineer'.

¶2Indeed the nomenclature used in the said two lines of para 6 by us is 'Assistant Engineer'.

¶3A perusal of the averments in the writ petition shows that the nomenclature of the post referred to is 'Engineering Assistant'. Accordingly, the application is allowed. Para 6 of our decision dated

07.09.2010 shall stand substituted as under:- "6. Facts which had given birth to the respective claims are that employees of the Central Government working in the Ministry of Information & Broadcasting were not opting W.P.(C) 2094/2007 page 1 of2

¶4for service under Prasar Bharti and probably by way of incentive were given a higher pay scale. Since in all the writ petitions we are concerned with employees appointed to the post of Engineering Assistant, Production Assistants, etc. it may be noted that erstwhile Central Government employees working in the Ministry of Information & Broadcasting and appointed as Engineering Assistant, Production Assistant etc. were placed in the scale Rs.6500-10500 but to others holding similar posts pay scale offered was Rs.S000-8000. The claim of all the respondents has ·succeeded before the Tribunal. The Tribunal has held that persons holding same posts cannot be discriminated vis-a-vis the scale of pay in which they have to be placed." The application is disposed of. PRADE·;;:-;;;J:tOG,j SEPTEMBER 24, 2010 ga W.P.(C) 2094/2007 5(

• \ * IN THE HIGH COURT OF DELHI AT NEW DELHI o/o Judgment Reserved On: 11th August, 2010 tudqment Delivered On: Olth September, 2010 + W.P.(C} N0.2094/2007 UOI & ANR. Through: . ..... Petitioners Mr.Rajeev Sharma, Mr.Abhishek Birthray, Advocates. versus MAHENDER SINGH RANA ..... Respondent Through: Mr.A.K.Behera and Ms.Meenu Mainee, Advocates. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? 2. To be referred to Reporter or not? 3. Whether the judgment should be reported in the Digest?