TMI Blog2015 (2) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 13.04.1999, he was entitled to the same pay scale that is offered to the other members of the Tribunal appointed under NDPSA, 1985, i.e. ₹ 24050-650-26000. The respondent effectively realized that the two pay scales offered to members appointed under the SAFEMA, 1976 and NDPSA, 1985 led to discrimination and, consequently, sought to amend the rules framed under the aforesaid two enactments by the impugned notification by equalizing the pay scales of the members appointed under both the enactments. However, while doing so, the pay scale permissible to members appointed under NDPSA, 1985 was lowered and made equal to that prescribed for members appointed under the SAFEMA, 1976. - As it is already held that the petitioner was entitled to the higher pay scale of ₹ 24050-650-26000 from the date of his appointment, i.e. 13.04.1999. That being the position, the respondent could not have varied, or altered the terms of his engagement to his disadvantage by reducing the pay scale admissible to him since the petitioner was already entitled to the higher pay scale of ₹ 24050-650-26000. The same could not have been lowered to ₹ 2400-525-24500. - impugned amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the age of 62 years. 3. The ATFP is a common Appellate Tribunal under SAFEMA, 1976 and NDPSA, 1985. It was originally constituted under Section 12(1) to deal with appeals under Sections 7, 9 (1) or 10 of the SAFEMA, 1976, and later when NDPSA, 1985 came into force, ATFP was constituted as the appellate body under Section 68 N of NDPSA as well, to deal with appeals under Sections 68F, 68-I and 68K (1) of NDPSA. ATFP has been hearing appeals under SAFEMA and NDPSA since May, 1989. In other words, the two Acts constitute- ATFP with different set of Rules under both the Acts, laying down the conditions of service of the chairman and members. 4. Rule 4 of the ATFP Rules, 1978 framed under SAFEMA, 1976 states that whoever is appointed as a member of the ATFP will draw a salary of ₹ 3,000 per mensem, and is entitled to draw such allowances as permitted to a Government officer with equivalent pay. The pay scale of ₹ 3,000 per mensem was revised to ₹ 7300-100-7600 after the implementation of 4 th Central Pay Commission (CPC). After the implementation of the recommendations of the 5th CPC, the pay scale was further revised to ₹ 22,400-525-24,500 w.e.f. 01.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4,500. This was the same as that being paid to members appointed under SAFEMA. In effect, the pay scale of the members appointed under the NDPSA was downwardly revised from ₹ 24,050-650-26,000 to ₹ 22,400-525-24,500. 9. Not satisfied, the petitioner approached the Central Administrative Tribunal (CAT/Tribunal) by preferring OA. No. 1557/2002, seeking the higher pay scale of ₹ 24050-26000. The Tribunal, by order dated 02.05.2003, allowed the application on the basis that the ATFP was one body exercising functions under SAFEMA and NDPSA, and two different pay scales could not be prescribed in respect of one post under the different Acts. The different pay scales were held to be a clear case of discrimination. 10. The respondents assailed of the order of CAT in OA No. 1557/2002 by filing W.P.(C) 1448/2004 before this Court. By order dated 28.07.2010, this court allowed the writ petition on the ground that it was beyond the scope of jurisdiction of the CAT to entertain claims of members of the ATFP under SAFEMA or NDPSA. 11. Consequently, the petitioner has now approached this court in its writ jurisdiction seeking direction for grant of higher pay scale. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, now, cannot turn around and challenge the same at this belated stage. 16. Ld. Counsel for the Respondents submits that the petitioner cannot claim a higher pay scale on the ground that the Act under which he was appointed was not specified in his appointment order. There is clearly no dispute about that fact that ATFP is the Appellate Tribunal under both the Acts, SAFEMA and NDPSA. Learned counsel further submits that this contention of the petitioner cannot be sustained, as it had been notified vide notifications Nos. 6/1999 and 7/1999 issued on 21.05.1999 that the Petitioner was obliged to hear appeals under both said Acts. We may note that the Respondent has not placed the said notifications on record. The averment of the Respondent in Para 23 of the counter affidavit dated 20.05.2011 reads as follows: 23. It cannot be disputed by the petitioner that after his appointment as member of ATFP and issuance of notifications No. 6/1999 7/1999, petitioner was obliged to hear the appeals under the both Acts i.e. SAFEMA NDPS. 17. It is evident from the record that the Petitioner was appointed to the post of member of ATFP in exercise of the powers under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. X X X X X X X X X X Construing Articles 14 and 16 in the light of the Preamble and Article 39(d) we are of the view that the principle 'Equal pay for Equal work' is 'deducible from those Article and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer. 19. In Mew Ram Kanojia vs. All India Institute of Medical Sciences and Ors, (1989) 2 SCC 235, the Supreme Court held: 4. The doctrine of Equal Pay for Equal work is not expressly declared fundamental right under the Constitution. But Article 39(d) read with Articles 14 and 16 of the Constitution declares the constitutional goal enjoining the State not to deny any person equality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to amend the rules framed under the aforesaid two enactments by the impugned notification by equalizing the pay scales of the members appointed under both the enactments. However, while doing so, the pay scale permissible to members appointed under NDPSA, 1985 was lowered and made equal to that prescribed for members appointed under the SAFEMA, 1976. 23. The issue which arises for consideration is whether, the respondent could have resorted to such an exercise so as to obliterate the pre-existing discrimination in the matter of pay scales admissible to different members of the same Tribunal, at least, in respect of those who were already holding the posts of the members of the Tribunal. 24. We have already held that the petitioner was entitled to the higher pay scale of ₹ 24050-650-26000 from the date of his appointment, i.e. 13.04.1999. That being the position, the respondent could not have varied, or altered the terms of his engagement to his disadvantage by reducing the pay scale admissible to him since the petitioner was already entitled to the higher pay scale of ₹ 24050-650-26000. The same could not have been lowered to ₹ 2400-525-24500. 25. The S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is presumed that letter dated 3.6.1999 (P-9) amounts to exercising the power of amendment and Rule 19(b) of the 1997 Rules has been amended, still it would not be sustainable because no rule could be framed or executive instructions be issued reducing the pay of an employee particularly when under the 1997 Rules it is considered as penal action. Rule 14 of the 1997 Rules postulate infliction of minor and major punishments. Under both the heads, reduction in emoluments, stoppage of increments and recovery of pecuniary loss are some of the punishments. Therefore, any instruction issued or rule made to the detriment of employees and against their interests causing loss of salary would be considered arbitrary and such a action can be taken only as a measure of punishment. The punishment of minor nature can be inflicted under Rule 14(2), however, a major punishment can be inflicted in accordance with the procedure established by Rule 14(3) of the 1997 Rules. Therefore, on that score also, the amendment is not permissible in law. 27. Consequently, the impugned amendment notifications issued by the respondent, altering the conditions of service to the detriment of members of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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