What is the scope of judicial review over the executive's fixation of pay scales for a class of government employees or tribunal presiding officers under Article 14 of the Constitution?

Pay fixation — Executive function — Limited judicial review — Article 14 — Reasonable classification — Re-employed pensioners — 6th Pay Commission — Pay fixation — Executive function — Limited judicial review — Held: Pay fixation is an executive function, and courts are not suited to evaluate and compare, on the basis of affidavits and pleadings, the justifiability of a differentiation in pay scales, such matters being best left to the executive; unless mala fides are shown, the fixation of pay scales by expert bodies or Pay Commissions is entitled to be respected, and judicial review in matters of classification of posts and determination of pay scale is very limited since the equation of posts and salaries is a complex matter best left to an expert body. (¶5, 6.5) Article 14 — Reasonable classification — Re-employed pensioners a separate class — Held further: Article 14 prohibits class legislation but does not prohibit reasonable classification for the purposes of legislation, and classifying re-employed persons separately from regularly serving officers for the purpose of pay structure and pay fixation, on the basis of a rational and intelligible differentia, satisfies the Equality Clause read with Article 16; re-employed officers cease to be homogeneous vis-a-vis the class of regular officers upon re-employment and can accordingly be denied parity with the pay scales granted to regularly employed officers. (¶6)

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Heard learned counsel Mr. Nishant Krishan Yadav for the petitioners, learned Additional Solicitor General Ms. Archana Pathak Dave for Union of India and its authorities-respondent Nos. 2 and 3, assisted by learned advocate on record Mr. Amrish Kumar and other advocates.

3.1 The petitioners submitted that CGIT-cum-LCs on one hand and all the above tribunals on the other, stand at the same pedestal. Despite that position, it was contended, the Government of India accepted the recommendations of the 6th Pay Commission for the officers of other tribunals such as the Central Administrative Tribunal and Income Tax Appellate Tribunal, however, as far as the CGIT-cum-LCs were concerned, the Government treated them along with the courts of the District Judge constituted by the State Government under Article 233 of the Constitution, and the pay structure and scales of pay were fixed accordingly.

3.2 The scales of pay recommended by Justice E. Padmanabhan Committee, which were approved by this Court for the District Judiciary of all the States, were applied to the Presiding Officers like the petitioners of CGIT-cum- LCs. It is the case of the petitioners that thereby the respondent- Union of India treated unequals with equals and arbitrarily grouped the petitioners with the District Judiciary, denying them the 6th Pay Commission pay scales.

3.3 The premise of unequal treatment sought to be set up by the petitioners is that, instead of being accorded the 6th Pay Commission pay scales, they have been extended the pay scales recommended by Justice E. Padmanabhan Committee, equivalent to those granted to the District Judiciary.

3.4 The respondents contend that the tribunals are constituted by the Central Government under different statutes enacted by Parliament in exercise of powers under Articles 247, 323-A, and 323-B of the Constitution, or under existing laws saved by Article 372 of the Constitution, and, therefore, cannot be put at par with the courts and tribunals constituted by the State Government under Articles 233 and 234, or under an enactment as provided by Article 323-B of the Constitution. Raising a corollary, it was contended that not extending the 6th Pay Commission pay scales to the Presiding Officers in the CGIT-cum-LCs is arbitrary and violative of Articles 14 and 16 of the Constitution.

3.5 It was stated that for the purpose of revision of pay for the District Judiciary, this Court had appointed Justice E. Padmanabhan Committee which, in its report, recommended Rs.51550-1230-58930-1380-63070 for the District Judge (entry level) and the District Judge (selection grade) was recommended to be Rs.57700-1230-58930- 1380-67210-1540-70290. The Super Time Scale for the District Judge was recommended to be Rs.70290-1540- 76450. These scales were given to the Presiding Officers of CGIT-cum-LCs. It was contended that in Delhi, 6th Central Pay Commission’s recommendations were implemented as an interim measure.

3.6 The petitioners stated that petitioner No. 1, who was a judicial officer of the Government of NCT of Delhi, came to be appointed as Presiding Officer of CGIT-I, New Delhi, and took charge of the post on 21.04.2009 on deputation till 30.06.2009. From 01.07.2009, petitioner No. 1 was taken on re-employment basis to work up to the age of 65 years. Petitioner No. 2 was also accordingly appointed as Presiding Officer of the CGIT, Hyderabad.

3.7 The pay of the petitioners was fixed equivalent to the Super Time Scale available to a District Judge. The petitioners sought to produce additional documents pointing out amendments in the Central Civil Services (Revised Pay) Rules, 2008, and that in terms of the Amendment, the scale was hiked in the Higher Administrative Grade and the respondent-Union of India issued necessary orders of pay scales for Presiding Officers of CGIT-cum-LCs in accordance therewith based on the recommendations of Justice E. Padmanabhan Committee’s recommendations. It was stated that the dissatisfied petitioners made several representations for the grant of 6th Pay Commission pay scales, but in vain.

(i) The petitioner was appointed as Presiding Officer in CGIT-cum-LC-I, New Delhi, with effect from 21.04.2009. His appointment was on deputation basis up to date of superannuation, which was 30.06.2009, whereafter, he came to be appointed with effect from 01.07.2009 on re-employment basis.

(ii) At the time of appointment to the post of Presiding Officer in the CGIT-cum-LCs, the petitioner was drawing his pay in the pay scale of Rs.22,850-500- 24,850 as applied to the Delhi Judicial Service.

(iii) 22 CGIT-cum-LCs are under the administrative control of the Ministry of Labour and Employment, set up under the provisions of the Industrial Disputes Act, 1947, out of which 10 are non-plan CGITs whereas 12 are plan CGITs.

(iv) The CGIT-cum-LC-I, Mumbai and CGIT-cum-LC, Kolkata, function as National Tribunals, which are headed by Presiding Officers selected from amongst High Court Judges, either serving or retired, or amongst the District or Additional District Judges, either serving or retired having experience of a minimum of three years in such capacity as District Judge.

(v) Only High Court Judges are qualified to be appointed as Presiding Officers of National Tribunals. On re-employment of the petitioner as Presiding Officer in CGIT-cum-LC, the pay drawn was in pay scale of Rs.22,850 as stated above.

(vi) Upon revision of the pay scales of the Central Government employees in accordance with the recommendations of the 6th Central Pay Commission, the Ministry of Labour and Employment had referred the matter to the Department of Justice seeking advice in respect of the pay scales of Presiding Officers of CGIT-cum-LCs, other than the National Industrial Tribunals and whether they are to be revised corresponding to the 6th Pay Commission recommendations.

(vii) Earlier the pay scales of the Presiding Officers of the CGIT were revised in accordance with the recommendations of the first National Judicial Pay Commission named Shetty Commission by Letter dated 28.09.2005 of the Ministry of Labour and Employment.

(viii) This was in the background of the fact that the pay scales of the Presiding Officers like the petitioners, were revised in view of the Shetty Commission's recommendations by letter dated 28.09.2005, therefore, it was to be ascertained whether the pay revision would now be calculated in light of the Shetty Commission's recommendations or as per the 6th Pay Commission pay scales.

(ix) The Department of Justice observed that the Ministry of Labour and Employment with the approval of the Ministry of Finance, revised the pay scales of the Presiding Officers of CGITs in accordance with the recommendations of the Shetty Commission to bring the pay scales at par with the pay scales of District Judges in the State Judiciary.

(x) The pay scales of the Presiding Officers linked to the pay scales granted to the District Judges after Shetty Commission, came to be revised and implemented after Justice E. Padmanabhan Committee recommended about the revision. The revised pay scales of the Presiding Officer, CGIT has made in the consonance with the recommendation of Justice E. Padmanabhan Committee dated 16.01.2012.

(xi) The revised pay structure has been implemented for the petitioners. Accordingly, petitioner No. 1 has been placed in Higher Administration Grade scale of Rs. 67,000/- and 79,000/- and that his last pay was fixed accordingly.

4.1 It was next contended by the respondents that the petitioners are reemployed persons. As per Central Civil Services (Fixation of pay of Re-employed Pensioners) Orders, 1986, reemployed pensioners shall be allowed to draw pay only in the prescribed scales of pay of the post in which they are reemployed. No protection of pay scales, it was stated, of the post held by the persons like petitioners in their reemployed capacity could be granted.

4.2 It was stated that the CGIT-cum-LCs, Mumbai and CGIT-cum-LCs, Kolkata functions as National Tribunals, which are headed by the Presiding Officers who are selected from amongst the High Court Judges or the District/Additional District Judges having served for three years as District Judges. It was further stated that only the High Court judges are qualified and that the Presiding Officers of CGIT-cum-LCs would hold the post till he or she attains age of 65 years.

4.3 The respondent stated that the representation of the petitioners regarding availing 6th pay commission pay scales to them was referred to the Ministry of Finance (Department of Expenditure) as well as Department of Personnel and Training, however, neither of the departments was of the view for reviewing the pay structure of the persons belonging to the class of the petitioners – the Presiding Officers of CGIT-cum-LCs.

(i) By order dated 16.01.2012, the pay scales prescribed by Justice E. Padmanabhan Commission were implemented for them. The pay scales were as under, S. No. Designation Scale of pay admissible prior to Padmanabhan Commission Revised scale of pay as per recommendations from Padmanabhan Commission - effective from 01.01.2006 1. District Judge (Entry Level) Rs.16,750-400- 19250- 450- 20500 Rs.51,550-1230- 58,930-1380-63,070 2. District Judge (Selection Grade) Rs.18,750-400- 19150- 450- 21850-500- 22,850 Rs. 57,700-1230- 58,930-1380-67,210- 1540 -70,290 3. District Judge (Super Time Scale) Rs.22,850-500- 24,850 Rs. 70,290-1540- 76,450

(ii) Dearness Allowance and House Rent Allowances as applicable to the Central Government employees were granted subject to applicable conditions. The conveyance allowance was granted and the medical facilities were extended under the CGHS Rules. The Transport Allowance was not admissible to the judicial officers, therefore, it was not made available to the presiding officers of the CGITcum-LCs .

(iii) The Central Government, by Notification dated 06.04.2015, framed Rules called the Presiding Officers of the Labour Court, Industrial Tribunal, and National Tribunal, (Salaries, Allowances and Other Terms and Conditions of Service) Rules, 2015. Under Rule 4(2) of the said rules, the salary of the presiding officer was prescribed as. The Dearness Allowances, House Rent Allowance, Conveyance Allowance and Medical Concessions were made admissible in the same way as applicable to the Central Government employees drawing equivalent pay.

(iv) Upon enactment of the Finance Act, 2017, Notification dated 01.06.2017 was issued, notifying the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2017. The presiding officer of the Industrial Tribunal, constituted by the Central Government, was provided the salary of Rs.1,44,200– 2,18,200, equivalent to Level 14 as per the 7th Pay Commission.

(v) Thereafter, by Notification dated 12.02.2020, the Tribunal, Appellate Tribunal and other Authorities (Qualifications, Experience and other Conditions of Service of Members) Rules, 2020 were framed, which prescribed the same pay scales for the presiding officers as were prescribed in the Rules of 2017.

(vi) After the enactment of the Tribunal Reforms Act, 2021, Notification dated 15.09.2021 was issued, in which the rules called the Tribunal (Conditions of Service) Rules, 2021 were notified. As per Rule 10(3) of the said rules, it was provided that the presiding officer of the Industrial Tribunal constituted by the Central Government shall be paid salary in the Pay Level of Rs.1,44,200– 2,18,200.

(vii) The presiding officers of the CGIT-cum-LCs were also made entitled to allowances and benefits admissible to a Government of India officer serving in a Group A post and carrying the same pay.

5.1 In other words, statutory rules have been framed from time to time to prescribe and revise pay scales for the officers belonging to the class of petitioners holding the post of presiding officer in the CGIT-cum-LCs.

5.2 The entire case of the petitioners is that they in their capacity as Presiding Officers in the CGIT-cum-LCs which are the tribunals within the meaning of Article 247 read with Article 323B of the Constitution, came to be wrongly denied the pay scales of the 6th Pay Commission by grouping them with the cadre of District Judiciary and granting the pay scales as applicable to the District Judiciary.

5.3 Noticing at this stage the relevant provisions of the Industrial Disputes Act, 1947,[^2] regarding constitution of the Labour Courts and Tribunals, Section 7 of the ID Act deals with the Labour Courts providing that the appropriate Government may, by notification in the Official Gazette, constitute one or more Labour Courts for the adjudication of industrial disputes in relation to any matter specified in the Second Schedule and perform such other functions as may be assigned under the Act. A person who is or has been a Judge of the High Court or a person who has worked for a period not less than three years as a District Judge or an Additional District Judge is qualified for appointment as the Presiding Officer of a Labour Court. A person who has held any judicial office in India for not less than seven years or one who has been the Presiding Officer of a Labour Court constituted under Provincial Act or State Act for not less than five years would also be eligible.

5.3.1 Section 7A of the ID Act is about constitution of Industrial Tribunals for the purpose of adjudication of industrial disputes relating to any matter specified either in the Second Schedule or in the Third Schedule of the Act. The appropriate Government may appoint a person as Presiding Officer among those who is or has been a Judge of the High Court or who has worked for a period of not less than three years been a District Judge or an Additional District Judge.

5.3.2 The constitution of the National Tribunals is dealt with in Section 7B of the Act. A National Tribunal may be constituted by the Central Government for adjudication of industrial disputes which in the opinion of the Central Government, involve questions of national importance or are of such a nature that industrial establishments situated in more than one State are interested therein or are affected by such disputes. The Presiding Officer of a National Tribunal is appointed with the Central Government. A Presiding Officer has to be a sitting or former Judge of the High Court, and the Central Government may appoint two more persons as assessors to advise the National Tribunal in proceeding before it.

5.4 Tracing the history of pay fixation and pay structure of the petitioners and similarly situated persons, communication dated 28.09.2005 of the Ministry of Labour and Employment, Government of India produced by the respondents along with the counter-affidavit, goes to show that the pay scales of their presiding officers appointed under Section 7A of the I.D. Act in the CGIT-cum-LCs came to be prescribed upon acceptance of the recommendations of the First National Judicial Pay Commission. The presiding officers in CGIT-cum-LCs were granted the revised pay scales as are applicable to the district judges with effect from 01.07.1996, to be thus fixed at that time;

(i) Distt. Judge (Entry Level) - 16/750-400-19,150-450- 20500/-, (ii) Distt. Judge (Selection Grade) -18J50400- 19,150-450-21,850-500-22,850/- and (iii) Distt Judge (Super time Scale)-22,850-500-24,850/-.

5.4.1 It was provided in paragraph 5 of the aforementioned communication that in respect of retired judicial officers, joining the CGIT-cum-LCs as presiding officers on re-employment basis, the pay is to be fixed as per the extant rules in the revised pay scales from the date of joining/taking into account their gross pension and pension equivalent to other retirement benefits. An Office Memorandum of the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, Government of India dated 05.04.2010, copy of which was also produced along with the reply-affidavit dealing with the subject of applicability of the CCS (RP) Rules, 2008 to the persons re-employed in government service after retirement and whose pay is debitable to civil estimates.

5.4.2 It was mentioned that the question of fixation of pay of retired personnel or officers re-employed in the Central Government was considered in consultation with the Department of Expenditure. It was clarified that the pay fixation of the re-employed pensioners on re-employment in Central Government would be done in accordance with the CCS (Fixation of Pay of Re-employed Pensioners) Orders, 1986 dated 31.07.1986 issued by the Ministry of Personnel and as revised from time to time.

5.4.3 The revised provisions indicated the manner and the special scheme of availment of the pay-scale/pay structure to the re-employed persons. The summary of the provisions could be culled out as under,

(a) Re-employed pensioners shall be allowed to draw pay only in the prescribed pay scale/pay structure of the post in which they are re-employed. No protection of the scales of pay/pay structure of the post held by them prior to retirement shall be given.

(b) In all cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per entry pay in the revised pay structure of the reemployed post applicable in the case of direct recruits appointed on or after 1.1.2006 as notified vide Section II, Part A of First Schedule to CCS (RP) Rules, 2008.

(c) In cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial basic pay cum re-employment shall be fixed at the same stage as the last basic drawn pay before retirement. However, he shall be granted the grade pay of the re-employed post.

(d) The maximum basic pay cannot exceed the grade pay of the re-employed post plus pay in the pay band of Rs.67000 i.e. the maximum of the pay band PB-4. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed.

(e) In the case of persons retiring before attaining the age of 55 years and who are re-employed, pension (including PFG and other forms of retirement benefits) shall be ignored for initial pay fixation as prescribed for.

5.4.4 It was further contemplated that the re-employed pensioners will be allowed to draw normal increments as per the provisions of Rules 9 and 10 of the CCS (RP) Rules, 2008, once the initial pay of the re-employed pensioner is fixed. Furthermore, the drawal of the various allowances in the revised pay structure shall be regulated with reference to the Grade Pay of the re-employment post or the basic pay. The manner of fixation of Defence Forces officers/personnel when re-employed in civilian posts was mentioned to state that the pension of such re-employed pensioners will include Military Service Pay (MSP), they will not be granted MSP while working in civilian organizations. Fixation of pay of personnel/officers re-employed before 01.01.2006 and who were in employment as on 01.01.2006 was also stated. Thus, the pay scales and their fixation for the re-employed persons is envisaged as a special scheme.

5.5 The fact is not in dispute, rather it is the case of the petitioners themselves, that they are in re-employment holding the post of presiding officer in CGIT-cum-LCs. While working on the re-employed post, they have been seeking for themselves the grant of 6th Pay Commission pay scales. What becomes evident is that the fixation of pay scales and the manner of pay structure available to the class of reemployed officers such as the petitioners, are governed by the Central Civil Services (Fixation of Pay of Re-employed Pensioners) Orders, 1986. In other words, the petitioners in their re-employed capacity and governed by different statutory Orders for the purpose of their pay fixation, want to be granted 6th Pay Commission scales, further contending that they could not be placed at par with the District Judiciary for grant of pay scales.

5.6 It is well settled that pay fixation is an executive function. In State of U.P. and Others vs. J.P. Chaurasia and Others[^3], it was observed that courts are not suited to evaluate and compare on the basis of the affidavits and pleadings, the justifiability or otherwise of the differentiation of the pay scales and that such matters should be best left to the executive. It was stated that unless mala fides are shown, the Court would respect the fixation of pay scales by the expert bodies or Pay Commissions Committees.

5.6.1 In Union of India vs. Dineshan K.K.[^4], this Court stated that though the task of judicial review in respect of pay structure is not altogether excluded from the purview of judicial review and the courts may look into it provided apparent anomaly exists. In that case, the plea of parity was considered by the Court and relief was granted on the basis that there was an apparent disparity and anomaly in the report of the Pay Commission itself, which the Central Government had admitted before the Court.

5.6.2 In Union of India vs. Indian Navy Civilian Design Officers Association and Another[^5], this Court disapproved the decision of the tribunal which equated the post of Junior Design Officers at par with that Civilian Technical Officers in the Navy and proceeded to fix pay scales for them treating them equally although, among other factors, the recruitment rules governing the Junior Design Officers and Civilian Technical Officers are different.

5.6.3 In Union of India vs. T.V.L.N. Mallikarjuna Rao[^6], the following statement of law was observed, “The classification of posts and determination of pay structure comes within the exclusive domain of the executive and the Tribunal cannot sit in appeal over the wisdom of the executive in prescribing certain pay structure and grade in a particular service. There may be more grades than one in a particular service.” (Para 26)

6.1 In Charanjit Lal Chowdhury vs. Union of India[^7], it was observed that Article 14 does not take away from the State the power of classifying persons for legitimate purposes. If the purpose is rational and legitimate, even if such classification produces inequality in some form, it would not offend Article 14. The principle of equality does not mean that every law must have universal application for all persons who are not, by nature, attainment or circumstances, stand in the same position. When the classes are different and validly made, varying factors would apply requiring separate treatment.

6.2 The category of re-employed officers/persons like the petitioners stand with substantial distinction against the regular officers in the employment of the government. The re-employed class could be reasonably and rationally classified separately for the purpose of applying pay scales which may not be equivalent to and on the same pedestal with the other classes. Upon re-employment, the reemployed officers/persons would cease to be homogeneous vis-à-vis class of regular officers in employment of the government.

6.3 The contention that the presiding officers in CGITcum-LCs have been wrongly equated with the officers in the District Judiciary and that the same scales are extended to both has no legs to stand. The industrial tribunals or labour courts in which persons like the petitioners are appointed as presiding officers are established within the State, and equating such presiding officers with the District Judiciary, excepting the presiding officers of National Tribunals functioning at Mumbai and Calcutta, is reasonable and does not book any arbitrariness.

6.4 The equating exercise is undertaken by commissions like Shetty Commission and recommendations made by Justice E. Padmanabhan Committee, which are the basis for extending the pay scale to the presiding officers of CGITcum-LCs at par with the District Judiciary. It is trite principle that the courts refrain from adopting a different view contrary to one seasonedly taken by the expert body, which is equipped with details and has the proficiency in the subject.

6.5 It has to be reiterated that the power of judicial review in matters of classification of posts and determination of pay scale was very limited inasmuch as the equation of posts and salaries is a complex matter required to be best left to an expert body. It is the domain which is exercised by the executive with the aid of bodies expert in the field.

6.6 Not only that the pay structure of the petitioners is designed and their pay scales are given as per the expert recommendations as highlighted above, the classification between the re-employed government officers who are posted on re-employment basis after attaining the age of superannuation grouping them with District Judges on one hand, and the officers in government services in regular employment on the other, for the purpose of their pay scales and pay structures, is a reasonable classification.

6.7 The re-employed officers/persons after the retirement, when re-employed again, stand belong to a separate class. Their claim to avail the 6th Pay Commission pay scales has no basis to assert on the footing of Fundamental Rights or on any other grounds. Grouping them separately with those regularly working and equating them with District Judiciary cannot be said to offend either the tenets of Article 14 or the requisites of Article 16 of the Constitution.