Is it a violation of article 14 or not ?

[jitendra nath]

One person appointed at Rs 8600/ on 8600-14600 scale on may 2006 and other appointed at 8600/ in may 2007 in same scale.Both Worked till june 2009 in same scale and got annual increment. But after 2nd PRC (pay revision) effective from 01.01.2007 the initial basic of person appointed in may 2006 became 19930 (8600×1.782×1.3) on 01.01.2007 but the initial basic of person appointed in june 2007 became 16400 on june 2007. 16400 (16400-40500)is the minimum of revised scale of 8600-14600. Thus two persons appointed,before and after 01.01.2007 had only difference of 1 increment(Rs 250) till june 2009 but now it is in tune of 20%.

Is it justified? whether we should go to court of law or not ?

[Dr. Ashok Dhamija]

Full details are not mentioned in your query. From what you have mentioned, it appears that the first person was already working in the pay scale 8600-14600 as on 01.01.2007 when the new pay scales were introduced (since he was appointed in May 2006). On the other hand, the second person was either in a lower scale (which you have not mentioned) or was not in service (if a direct appointee) as on 01.01.2007 since he was placed in the above pre-revised scale of 8400-14600 after this date of 01.01.2007 (i.e., in May 2007). Therefore, it appears that the extra difference in their revised pay after revision of pay may be due to the difference in their old pay scales as on 01.01.2007 with effect from which date the new pay scales were introduced, or this difference may be due to the amount of annual increment in the new pay scale. Now, whether there is a violation of the right to equality will depend on the facts of the case. From the facts mentioned by you, it is difficult to say.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[jitendra nath]

Sir,thanks for responding. Actually 2nd PRC itself came into picture in April 2009 but effective from 01.01.2007. So one direct recruitment was done in year 2006 with notification year 2006 and were appointed on basic 8600 in the pre revised scale of E1 (8600-14600) on May 2006. Another direct recruitment took place in June 2007 with same RR but with notification year of 2007.As the 2nd prc was not in picture in june 2007 basic was fixed at 8600 with same scale of 8600-14600. Thus on june 2007 the basic was of a person appointed in May 2006 was 8600+250=8850/ and appointed on May 2007 was 8600/ . Similarly in june 2009 (when 2nd prc was implemented w.e.f 01.01.2007 ), basic of appointed in may 2006 was 8600+ 250+250+250 =9350 and of appointed on June 2007 was 8600+250+250 = 9100. But as the 2nd prc was w.e f 01.01.07 and on 01.01.2007 the basic of may 2006 appointee was 8600 their basic was fixed with 78.2% Da merger and 30% fitment thus on 01.01.2007 the basic became 8600×1.78×1.3= 19930 in the revised scale of E1 (16400-40500). But the june 2007 appointee were refixed on 16400 (the minimum ) on June 2007.Thus the difference which was only 250 (one increment) became 19930-16400= 3530/ on June 2007.

[jitendra nath]

Sir, in short just imagine a situation where one person recruited (direct recruitment) with recruitment year 2006 and appointed in December 2006 on 8600 of scale 8600-14600 (pre revised) and other appointed in march 2007 with recruitment (direct recruitment) year 2007 again with pre revised scale at 8600/ because of absence of revised scale effective from 01.01.2007.But after pay revision the methodology to revise the basic in pre revised scale (which came in june 2009 but effective from 01.012007 ) is as below. pre 01.01.2007 appointed employee were given 78.2% Da merger and 30 % fitment. Thus pre revision appointee basic turned in to 8600×1.782×1.3=19930.
Whereas the post 01.01.2007 are being given the minimum of revised scale only .i.e 16400 of 16400-40500/ . Thus when there was not a difference of one increment turned more than 20% .As the increment depebds on 3% of present basic this difference is increasing year by year.

Please sir help us.

[Dr. Ashok Dhamija]

I have tried to see the implementation of the 6th Central Pay Commission with effect from 01.01.2006. What I found was that there was a similar anomaly. In fact, it appears that when pay scales are revised, the existing employees (whether at the minimum of the pay scales or at some other stage of the pay scales) get merger of DA at the prescribed percentage and also a fitment allowance is given. For example, for 6th Central Pay Commission implementation, 40% fitment was given. Such benefits are given to help the existing employees. On the other hand, if a new employee joins after the revision of the pay scale, he has to start at the minimum of the new pay scale and he cannot get advantage of the previous DA and fitment allowance. This may usually be one time anomaly. I noticed a similar anomaly in 6th CPC, where those who were at the minimum of the old pay scale got revised pay in the new pay scale which was higher than the minimum of the new pay scale. The problem in your case is arising because the new pay scales were implemented from a back date but the back date was fixed just before your own joining date. In such circumstances, chances of a petition succeeding appear to be very less, but you want you can try to approach the appropriate court or tribunal which has jurisdiction to hear your case.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[jitendra nath]

Thanks Sir, You got the point. In my case it is not the 6th CPC but 2nd PRC for PSU. As I am a sufferer I have researched a lot despite being not a lawyer. What I found is that The minimum of revised scale is incorporated with the quantum of fitment and DA which is to be merged. Thus the methodology is different for pre revision appointed employee and post revision appointed employee but the benefit remains same. If a scale is 5k-15k and fitment is 20%, DA merger is 50% then the revised scale starts with almost 5kx1.2×1.5= 9k. And revised scale may be 9k-30k. Thus even the minimum of revised scale gives the same benefit.

The same can be verified in 7th CPC recommendation in table 5, where the entry basic for post 2016 is just the entry pay of pre revised basic multiplied by multiplication factor which comes after merging of DA and amount of fitment. And there is absolute zero difference between pre revised and post revised.

[jitendra nath]

Even 2nd PRC kept these facts in to consideration and recommended 5 different sets of revised scale and fitment namely A+, A, B, C, D. Fitment for A+ type CPSE was recommended to 30 % and for D type CPSE 3 %. Based on this, E1 scale for A+ type CPSE was recommended to 20700-33800 and E1 scale for D type CPSE 16400-27000. The same for E2, E3, E4 etc. (2nd PRC recommendation is attached here). So in each type of CPSE there was a relation between fitment (for pre revision appointee) and revised scale (for post revision appointee). Thus in the 2nd PRC recommendation the minimum of revised scale was incorporated with the quantum of fitment and the harmony between pre revised basic and minimum of revised basic was fine. But DPE selected randomly A+ type fitment and D type revised scale for each CPSE. Thus relation between pre and post pay revision basic got broken. Keeping above fact into consideration, DPE did not issue any guidelines to appoint only at the minimum of revised scale for post 01.01.2007 appointed executive but CPSE takes it as a general practice to appoint at minimum of revised scale.

Even in 6th CPC there is a term ENTRY PAY for post revision appointed (direct recruitment) employee which is not the minimum of the revised scale.In 6th CPC the multiplication factor was 1.86 and in band 1,2,3 the first scale is generally the entry level (direct) post and rest are promoted . And in each band the minimum of the revised is even more than the minimum of pre revised multiplied by 1.86. 5000x 1.86 = 9300/. 800×1.86=14880 (less than 15600)/
And even if a direct recruitment in 2nd or 3rd scale in a pay band there is an entry pay which is more than the minimum of revised. Thus kept this anomaly in view.

[jitendra nath]

Sir,
The legal aspect: Based on judgment of Honorable Supreme Court in D S Nakara vs UOI, Honorable Calcutta High Court has given judgment in Mr. Ibrahim Mullah and others vs UoI. Para no. 14 of this judgment is reproduced here. “The question is whether this classification of the two groups for the purpose of fixation of pay stands the test of Article 14 of the Constitution of India. The law is now settled that classification permissible under Article 14 must satisfy two conditions, namely, (i) it must be founded on an intelligible differentia which, distinguishes persons or things that are grouped together from others left out of the group, and (ii) the differentia must have a rational relation to the object sought to be achieved by the measure in question”. Further the differentia and the object must be different and object itself cannot be the basis of classification. Further this Para no. 14 says “If the classification is not reasonable and does not satisfy the two conditions referred to above, the impugned legislative or executive action would plainly be arbitrary and the guarantee of equality under Article 14 would be breached”. IS THERE ANY INTANGIBLE DIFFERENTIA BETWEEN EMPLOYEE OF 2006 BATCHES AND EMPLOYEE OF 2007 BATCH WHICH HAS A RATIONAL RELATION? BOTH ARE RECRUITED UNDER SAME RR.BOTH ARE DIRECT RECRUITEE. Second section of Para no. 14 of this is also reproduced here.”That is, for the same work and same functions, the appellants would get less pay than the other group of senior draughts men. The explanation is that this division is based on seniority. This cannot be accepted as sufficient to meet the requirements of law. BY SENIORITY, A SENIOR DRAUGHTSMAN WILL GET HIGHER PAY WITH THE INCREMENTS THAT HE EARNS PROPORTIONATE TO THE NUMBER OF YEARS HE IS IN SERVICE.” “It is needless to mention that the main purpose of pay revision is generally to make upward revision of pay of employees necessitated by a host of reasons, such as, fall in rupee value, the rising cost of maintenance of livelihood etc.

I have approached to DPE but they say that it is a question of fixation and it is in the domain of PSU. They also in a reply to my RTI said that DPE had not issued any guidelines to appoint only at minimum of revised scale.

[Dr. Ashok Dhamija]

I agree with you that you have a valid point. But, the problem is that you’ll have to setup your case before a court of law that has jurisdiction and prove that there is violation of your right to equality. Other than DS Nakara case, there are several judgments on Article 14. The problem arises because the date of implementation was from a back date otherwise it would not have led to this anomaly. Perhaps you can challenge the date of implementation and in the alternative argue that the same principle should be applied for everybody who was already in service when the pay revision was implemented. But, what I had pointed out was that a similar anomaly existed even in the implementation of 6th Central Pay Commission. For example, the S-32 pay scale up to 2006 was 24050-650-26000, and the new revised pay scale was 75500-80000. But, with DA merger and fitment, the minimum basic of the old pay scale (i.e., 24050) was NOT equated with the minimum basic in new pay scale of 75500, but the equivalent was fixed at 77765. So, there was a similar anomaly for somebody who was already at the minimum basic of old pay scale when pay scale was revised and for somebody who got appointed to it after the revision. The difference is more than 2000.

No doubt, there appears to be an anomaly in your case and you’ll have to challenge it by properly taking up grounds for challenge. Please consult some local lawyer and show him all your relevant details, who will be in a better position after seeing full details and circulars, etc.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[jitendra nath]

Very very thankful to you sir. I did not expect such a nice response from a senior lawyer and more than that from an IPS officer. I will try my best to remove this anomaly but being a common man I don’t know up to which extent I will be able to take it.Again thanks sir.

[jitendra nath]

Sir, sorry to disturb you again. I have to say about the example of S-32 pay scale and other 6th CPC scales. Actually there is no direct recruitment in these scales. Thus the person has got already the benefit of pay revision in their basic, as on date of pay revision and no comparison with any other in absence of direct recruitment in that cadre. So almost where there is direct recruitment, this fact has taken into consideration. Whether it is 8000-13500. 8000×1.86 = 14880/ But initial of revised is 15600/
Similarly for 5000-8000. 5000×1.86=9300/ And the initial is 9300 of 9300-34800/ Rest in the same bands are almost promoted cadre and no direct recruitment. And even if there is any it has been tried to neutralize it with the concept of Entry pay which does not stick to minimum of revised scale only. Thanks Sir

[Dr. Ashok Dhamija]

What I mentioned for S-32 appears to be applicable to other pay scales also at the time of the 6th CPC. Please see Office Memorandum dated 30 August 2008 of the Ministry of Finance, Department of Expenditure, GOI, which will provide these details to you. This means for most of the old pay scale, the minimum of old basic when increased by DA and fitment allowance goes above the minimum of the new pay scale.

Anyway, you’ll have to challenge the discrimination in your case on the basis of your own facts.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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