SABYASACHI MUKHARJI - (1.) THIS petition under Article 32 of the Constitution in a representative capacity on behalf of the stenographers (Grade I) who are attached with officers in the pay scale of Rs. 2500-2750 (Level I), seeks parity with the pay scale of the stenographers attached to the Joint Secretaries and officers above that rank. It is stated that the petitioners are in the pay scale of Rs. 550-900. The petitioners' claim that they should be placed in the pay scale of Rs. 650-1040 with effect from lst of January, 1973. It must, however, be mentioned that this petition was filed on or about 7th of May, 1982 and submissions on this petition were made in the end of November, 1986. Therefore, the position pertaining to the controversy in this case is prior to the report or the implementation of the Fourth Pay Commission. In short, the petitioners are personal assistance and stenographers attached to the heads of the departments in the Customs and Central Excise Departments of the Ministry of Finance. They assert that they have been and are discriminated vis-a-vis personal assistants and stenographers attached to the Joint Secretaries and officers above them in the Ministry. In brief, it is the case of the petitioners that between 28th of January, 1955 to 8th of November, 1957 the Ministry of Finance prescribed certain educational qualifications and technical proficiency qualifications for both Stenographers and Steno-typists. On or about 26th of April, 1968, the Department of Revenue, Central Board of Excise and Customs made provisions for filling the posts of Stenographers by direct recruitment and prescribed qualifications etc. for the same. In July, 1969 the Government of India, Ministry of Home Affairs classified the posts of Stenographers sanctioned at different levels into four grades viz., Grade III, II, I and Selection Grade. Posts attached to Secretaries and Additional Secretaries were classified as Selection Grade originally and were given pay of Rs. 350-(500)-900 with effect from 1st of August, 1969, Stenographers Grade II (Rs. 210-530) placed with Joint secretaries and officers of equivalent rank were upgraded to Grade I in the pay scale of Rs. 350-(400)-770; Grade II Stenographers were given Rs. 210-530; Grade III stenographers were given Rs. 130-280 and Grade III in petitioner's offices were given Rs. 130-300. It is the case of the petitioners that the counterparts of the petitioners (Grade II Stenographers) were in the pay scale of Rs. 210-530 and petitioners in Rs. 210-425. Criteria of pay scales/status/ rank of officers for the scale of pay of stenographers were made out. In 1970 Ministry of Home Affairs set out the category of officers viz. Joint Secretaries to the Government of India and officers of equivalent rank are entitled to the sanction of scale of category of stenographers Grade ISr. P.A. in the pay scale of Rs. 350-770. Criterion of status/rank of an officer was again established for the pay scale of stenographers. Ministry of Home Affairs on or about 29th of June, 1972 pursuant to the decision taken on that date reached in the NCJCM relates to creation of posts of Stenographers Grade I and Grade II in subordinate offices and other offices of the Government of India and also identified/set out/ clarified that the posts of Stenographers attached to officers whose status is higher than that of Deputy Secretary to the Government of India shall be in the scale of Rs. 210-425. Criterion of status of an officer for scale of pay of Stenographers was again established. Thereafter there was the Third Pay Commission's report which was accepted and recommendations were given effect to. As a result of the various Government notifications thereafter and Rules framed, it is the case of the petitioners that their counterparts, that is to say, Stenographers Grade I attached/sanctioned to the Joint Secretaries and equivalent officers were given the pay scale of Rs. 650-(710)-1040; whereas the petitioners whose posts were/are sanctioned and attached with the officers of the same Government Ministry of Finance and the Department of Revenue and the same administration and Grade Level I (Rs. 2500-2750), Joint Secretaries and Level II (Rs. 2250-2500) Directors, who are also Heads of Departments, and are at par in seniority/promotion with the counterparts officers in the Department of Revenue were given only Rs. 425-700, whereas the Stenographers Grade-I/Senior Grade, the petitioners discharged the same functions and indeed, have sometimes more onerous duties and responsibilities than their counterparts attached with Joint Secretaries and Level-II Directors, according to the petitioners. From the affidavit filed on behalf of the petitioners in reply to the opposition by the respondents, it appears that the method of recruitment in respect of Grade I stenographers in the Department is as follows : (i) Petitioners' counterparts in the so-called Secratrial and participating attached offices-CSSS. 95 JUDGEMENT_91_3_1988Html1.htm (ii) Petitioners' offices i.e. so called non-participating attached and subordinate offices (Directorates and Collectorates of Customs and Central Excise) JUDGEMENT_91_3_1988Html2.htm 96 (iii) Comparative Position JUDGEMENT_91_3_1988Html3.htm
(2.) IN the rejoinder filed on behalf of the petitioners in this application by one Ved Bhardwaj, General Secretary of the Federation, it is stated that the correct position of recruitment and position vis-a-vis the petitioners' counterparts in the so-called secretariat and participating attached offices are as follows : "(i) the petitioners and their Secretariat counterparts are both members of the same Central Civil Service; (ii) they are both Stenographers Grade I belonging to Group 'B' of the Service except that the Secretariat Stenographers are gazetted, whereas the petitioners are not. This exception is a purely fortuitous circumstance; (iii) the petitioners and their counterparts are both sanctioned, assigned to and attached with officers who are in the pay scales of Rs. 2500-2750, Rs. 2250-2500 and Rs. 2000-2250; (iv) Majority of the petitioners' posts are sanctioned/attached with Heads of the Department." The petitioners assert that the above facts reinforce the petitioners' submissions that as between them and their Secretariat counterparts all things are equal i.e., all relevant considerations governing both are the same and they hold identical posts. According to the petitioners they discharge the same functions and, indeed, sometimes more onerous duties and responsibilities than their counterparts whether in the Ministry of Finance or other Ministries in the Central Secretariat. In the very nature of their service and its concomitant duties and obligations, which concern the administration and execution of matters falling under the Customs Act, 1962, the Central Excises and Salt Act, 1944, the Foreign Exchange Regulations Act, 1973 and other Acts. The petitioners have various duties to perform which according to them are as follows : (a) long and arduous hours of work, generally extending late in the evening beyond normal office hours and sometimes throughout the night in cases of emergency that have become all too frequent owing to (i) Petitioners' counterparts in the so-called Secretariat and participating attached offices CSSS. increased punitive and preventive detention cases arising under these Acts resulting in proceedings before all levels of Courts including this Honourable Court, and a spate of Parliament questions affecting the Ministry of Finance, Department of Revenue, and the petitioners' Department in particular in all its administrative aspects and ramifications. The petitioners have no option but to discharge these duties when called upon to do so and their willingness to forego overtime (in cases where the Stenographers are entitled) is not accepted by the officers as affording an excuse to relieve the petitioners of such duties and hours of work. (b) an excessively recurring volume of dictation and typing, day to day to cope with the normal and emergent exigencies, including written correspondence, recording and transcribing of notes on inspection tours and preparation of investigation and tour reports for the superior officers; of notes and memoranda for counsel in court proceedings, of briefs for official statements and conferences and replies to Parliament questions and the Public Accounts Committee, Chambers of Commerce, Customs and Central Excise Advisory Councils and other bodies on fiscal policies like Commissions/ Committees, detailed reports constituting background material with reference to cases or matters falling within the purview of any one or more of the aforesaid Acts, and so on. (c) observing the very stringent requirements of secrecy necessarily involved in such cases or matters, (d) the consequent constant exposure to security risks and to personal safety with accompanying mental tension and strain." The petitioners assert that basic qualifications, method, manner and source of recruitment and grades of promotions are the same as their counterparts attached to the Joint Secretaries/ Secretaries and other officers in the Secretariat. According to the petitioners even on the criteria adopted by the Third Pay Commission they seek herein to demonstrate that there was no basis for any differentiation between the petitioners and their counterparts. While the petitioners get a grade of Rs. 550-900 their counterparts are in the pay scale of Rs. 656-1040. The petitioners assert that this is discrimination. This differentiation without any rational basis is discrimination violative of Article 14 and Article 16(l) of the Constitution of India. They clamour for equal pay for equal work. They also allege that there has been discrimination in the adoption of the recommendations of the Third Pay Commission as detailed in their petition.
(3.) THIS petition has been disposed of on the basis of the position prevailing prior to the report of the Fourth Pay Commission and its acceptance or implementation. The respondents on the other hand deny that there is any discrimination, differentiation without basis. The respondents by their affidavit filed by one Shri S. P. Kundu, Under Secretary to the Government of India, Ministry of Finance assert that the Secretariat of the Ministries/ Departments of the Government of India together constitute Headquarters Organisation. In the administrative hierarchy of the Central Government, the Secretariat occupy according to respondents, a key position and the main role of the Secretariat is to help the Government in the tasks of formulation of policies, to prepare programmes in order to translate these policies into co-ordinated action and to ensure the effective execution of Government policies through periodical review. The Secretariat also helps Ministers to discharge their accountability to Parliament including the various Parliamentary Committees. According to the respondents detailed execution of Government's policies specially in the field is left to the agencies outside the Secretariat which are called attached or subordinate offices of the Ministries, but they are always subject to supervision by the Secretariat. The respondents state that to man the various stenographic posts in the Headquarters, the Government constituted the Central Secretariat Stenograhers Service (CSSS) which also caters to the needs of such posts in several attached offices which are known as participating offices. But none of the attached offices, assert the respondents, of the Department of Revenue are participating offices. Therefore, keeping in view the importance and the nature and the type of the work performed in the Ministries/ Departments of the Government of India vis-a-vis those in the attached and subordinate offices and consequently the nature of stenographic assistance required, according to the respondents, the Third Pay Commission recommended different scales of pay for Stenographers in CSSS and those in the non-participating attached and subordinate offices. The respondents in this connection have drawn our attention to the Report of the Third Pay Commission in recommending different and lower scales of pay for the stenographers of the non-participating attached and subordinate offices in comparison with those in the Central Secretariat as follows : "As a general statement, it is correct to say that the basic nature of a stenographer's work remains by and large the same whether he is working with an officer in the Secretariat or with an officer in the subordinate office. We feel, however, that the position needs to be examined a little more critically because, the size of a stenographer's job is very much dependent upon the nature of the work entrusted to that officer. It would not be correct therefore to go merely by status in these matters and disregard the functional requirements. By the very nature of Secretariat working the volume of dictation and typing work can be expected to be heavier than in a subordinate office. Also the requirement of secrecy even in the civil offices of the Secretariat can be very stringent. Considering the differences in the hierarchical structure and in the type of work transacted in the Secretariat and in the subordinate offices, we are not in favour of adopting a uniform pattern. Once the functional requirements are seen to be different for the Secretariat and the subordinate office, it will not be worthwhile to aim for absolute parity in the pay scale of Stenographers working on the two sides." What was emphasised before us was that the difference in the functional requirements of the work done was one of the points. The respondents say that in devising any scales of various posts/categories inter alia, the degree of skill, experience involved, training required, responsibility taken, strain, fatigue, risk and confidentiality undertaken, mental and physical requirements are factors to be borne in mind. It has been emphasised by the respondents that though the duties and works are identical between the petitioners and their counterparts attached to the Secretaries in the Secretariat, their functions are not identical with regard to their duties and responsibilities. The respondents state that the stenographers attached with the officers in the Secretariat formed a distinguishable class as they have to assist the officers in the discharge of their duties and high responsibilities which according to the respondents are of a much higher nature than in the attached and subordinate offices. According to the respondents the Joint Secretaries and Directors in the Central Secretariat performed functions and duties of higher responsibilities than those performed by the Heads of Departments although they are borne on identical scales of pay. It is in this background of the facts that the claims of the petitioners have to be judged.;