S.B. Sinha, C.J.
1. The respondents before the Central Administrative Tribunal, Principal Bench, New Delhi (hereinafter referred to as, 'the Tribunal') are the writ petitioners herein. The respondents herein filed the said original application, which was registered as O.A. No 2491 of 1998 purporting to be aggrieved by and dissatisfied with the action on the part of the petitioners herein in taking a decision on the question of grant of pay-scale of Rs. 2,000/- -- Rs. 3,500/- to the Welfare Officers of the Central Social Welfare Board (in short, 'the Board'), although a decision to that effect had already been taken by the Executive Committee of the Board on 27.12.1991 and also despite the alleged clarification given by the Government of India (in short, 'the Government') that the Board can take a decision on the aforementioned question on their own without any reference to them.
2. The factual matrix leading to institution of the writ petition is as follows:-
A recommendation was made by the Work Study Unit of the Department of Women and Child Development (in short, 'the Department') that the Welfare Officers be given a pay-scale of Rs. 2,000/- -- Rs. 3,500, which was equal to the pay-scale of Assistant Project Officers. On 01.01.1986, the Welfare Officers were given the pay-scale of Rs. 1,640/- -- Rs. 2,900/- as per the recommendations of the Fourth Central Pay Commission.
3. On 27.12.1991, the Executive Committee of the Board approved a proposal granting pay-scale of Rs. 2,000/- -- Rs. 3,500/- to the Welfare Officers and sought for the approval of the Government for the same.
4. On 26.05.1997, the Department informed the Board that the proposal in respect of rationalization of pay-scale of the Welfare Officers be moved after recommendations of the Fifth Central Pay Commission.
5. On 01.01.1996, the scales of pay as recommended by the Fifth Central Pay Commission came into force. Pursuant to and in furtherance thereof, the Field Officers were given the replacement scale of the earlier pay-scale.
6. On 24.10.1997, the Board again took up the matter with the Government in reply whereto the Department wrote to the Board that the Boards has all the powers to decide matters concerning employees drawing a salary of Rs. 4,500/- or below as stated in Clause 13(b) of Memorandum and Articles of Association.
7. Again the issue was placed before the Executive Committee of the Board on 30.12.1997 and the Executive Committee recommended that the matter should be referred to the Department. In the meantime, the Board proposed a cadre review of the Field Officers and it was felt that the issue of revision of pay-scale should be a part of the exercise on cadre review.
8. Thereafter the respondents herein filed the aforesaid original application before the learned Tribunal inter alia praying for directions to the respondents therein to grant the pay-scale of Rs. 2,000/- -- Rs. 3,500/- to the Welfare Officers w.e.f. 01.01.1986 and the consequential scale of Rs. 6,500/- -- Rs. 10,500/- w.e.f. 01.01.1996 with all consequential benefits.
9. The learned Tribunal by reason of the impugned order dated 20.12.2000 allowed the said original application with a direction to the Board to place the Welfare Officers in the pay-scale of Rs. 2,000/- -- Rs. 3,500/- w.e.f. 01.01.1986 and Rs. 6,500/- -- Rs. 10,500/- w.e.f. 01.01.1996 with arrears of pay and consequential benefits with the direction to implement the said order within a period of 3 months, which was later on extended up to 31.12.2000.
10. Mr. Maninder Singh, the learned counsel appearing on behalf of Union of India would submit that the equation of scale of pay of the Welfare Officers and the Assistant Project Officers was not permissible in law and that too without receiving concurrence therefor by the Ministry of Expenditure.
11. According to the learned counsel, the leaned Tribunal wrongly proceeded on the basis that requisite sanction had already been accorded by the concerned Ministry on a misconstruction and misinterpretation of the documents.
12. The learned counsel would contend that only because the original applicants had been given the benefit of the Fifth Central Pay Commission w.e.f. 01.01.1996 for different reasons, the same by itself would not mean that their claim for the said pay could be granted w.e.f. 01.01.1996.
13. The learned counsel would argue that the learned Tribunal exceeded its jurisdiction of judicial review in so far as it directed payment of pay-scale with retrospective effect from 01.01.1986.
14. The learned counsel appearing on behalf of the respondents, on the other hand, would contend that the petitioners herein are guilty of suppression of fact to the effect that it had not been disclosed before this Court that the order of the Tribunal had been accepted and wherefor statements have been made before the Tribunal as would appear from the orders passed on 28.03.2001 and 19.04.2001.
15. It had further been contended that the writ petitioners have also filed a miscellaneous application before the learned Tribunal, which was marked as M.A. No. 2501 of 2001 for extension of time to comply with the said order, which having been granted, they are now estopped and precluded from pursuing the writ petition.
16. The learned counsel would contend that the petitioners herein thus who had approached this Court with unclean hands and had also taken recourse to 'approbate and reprobate' and, thus, are not entitled to maintain the writ petition. Reliance in this behalf has been placed on Welcome Hotel and Ors. v. State of Andhra Pradesh and Ors. (1983) 3 SCC 575 and R.N. Gosain v. Yashpal Dhir .
17. It is a trite law that the matter relating to fixation of pay scales should be left to expert bodies like the Central Pay Commission. Reference in this connection may be made to State of U.P. v. J.P. Chaurasia ; State of West Bengal v. Hari Narayan Bhowal 1994 (27) ATC 524; and Union of India and Ors. v. P.V. Hariharan and Ors. .
18. In S.L. Ahmed v. Union of India , it was held:-
"It is not for this Court, we think, to examine how far below should be the revised pay scale of the Radio Operators Grade III (Naik). If the Govt. has prescribed a particular pay scale in respect of them, all that the court can do is to merely pronounce on the validity of that fixation. In the event that the court finds that the prescription is contrary to law it will strike down and direct the Government to take a fresh decision in the matter. It is very different case from one where this Court has sought to prescribe pay scales in appeals directly preferred from an award of the Labour Court dealing with such a matter. In the latter case, this Court in its appellate jurisdiction can be regarded as enjoying all the jurisdiction which the Labour Court enjoys. That is not so in the present case".
19. It was contended that even in terms of Clause 13(b) of the Memorandum of Association of the Board, it had the power to adopt pay-scale whose maximum scale does not exceed Rs. 4,500/- without any reference to the Central Government. The said position was reiterated by the Ministry of Human Resource Development (in short, 'Ministry of HRD') vide their letter dated 12.11.1997, which is to the following effect:-
"Subject: Rationalization of pay scale of Welfare Officers of CSWB attached to different State Social Welfare Advisory Board.
I am directed to refer to your letter No. F.2-I/F.O./Scale 97-SB. Admn. dated 24.10.1997 on the above cited subject and to say that as pointed on by the CSWB that the CSWB has all powers to decide such matters concerning employees drawing salary of Rs. 4500/- or below. So the CSWB should not have made reference to us in this matter and should have taken an appropriate decision through its Executive Committee. It is advised that the CSWB may take an action accordingly. Further more the CSWB may send a proposal to appropriately modify its Memorandum and Articles of Association in view of the 5th Pay Commission recommendations in this regard."
20. We may notice that the counter affidavit filed by the Union of India before the learned Tribunal, which is to the following effect:-
"3. It is stated that the issue regarding upgradation of the pay scale of Welfare Officers of Central Social Welfare Board was first considered in the Executive Committee meeting of the Central Social Welfare Board held on 27.12.91. This was discussed at length in the Executive Committee meeting, which was also attended by the Joint Secretary of the Department of Women & Child Development and the representative of the Integrated Finance Division (IFD). Keeping in view the recommendation of the IVth Pay Commission of different scales of pay to different categories of staff according to their duties and responsibilities like Assistant Supervisors of Directorate of Social Welfare. Assistant Marketing Officer of Directorate of Marketing Inspection. Inspector of Factories of Labour Commissioner's Office and Assistant Regional Directors of Department of Education whose pre-revised scale was Rs. 550-900 and who were given revised scale Rs. 2000-3500, the Executive Committee decided to upgrade the revised pay scale of Welfare Officers from Rs. 1640-2900 to Rs. 2000-3500. This was done subject to the approval of the Govt. of India."
21. It may be correct that in a meeting, certain proposals had been accepted, but the same would not mean that a final decision had been taken thereupon.
22. It is not in dispute that the post of the Welfare Officer was the lowest in the rung and the said post was the feeder post for promotion to the extent of 75% of the posts of Assistant Project Officers.
23. It is also not in dispute that the Board is totally financed by the Union of India and having regard to the financial implication, the creation of posts and grant of pay-scale, etc. would be subject to approval of the Central Government.
24. Having regard to the rules made under Article 77 of the Constitution of India (in short, 'the Constitution'), the power of the Central Government in this behalf must be exercised by the appropriate Ministry.
25. From the events, as noticed hereinabove, the Executive Committee of the Board approved the proposal to the effect that the Welfare Officer be given IV Central Pay Commission pay-scale, but therefor the Central Government approval had been sought for. It is not in dispute that such Central Government approval by the appropriate Ministry had not been granted.
26. The post of Assistant Project Officer being a promotional post wherefor the cadre of Welfare Officer was a feeder cadre, the same scale of pay could not have been directed to be given unless there had been a merger of cadre. Such merger of cadre must emanate from a rule made in terms of the provisions of a statute or under proviso appended to Article 309 of the Constitution or in terms of an appropriate Executive Instruction.
27. It is further not in dispute that hierarchy of the post of Welfare Officer, Assistant Project Officer and Project Officer had all along been maintained by petitioner No. 1.
28. The petitioners herein had relied upon the following chart to show the position as regard scale of pay of Assistant Project Officer and Welfare Officer in terms of the recommendations made by several Central Pay Commissions, which is to the following effect:- Pay Commission
Asstt. Project Officer
There was no post as the post was created in 1976. (1)225-10-275-15-350
There was no post as the post was created in 1976 325-15-475-EB-20-475
from 01.11.1969 the pay scale of Rs. 300-650 was granted by the CSWB.
650-30-740-35-810-EB -3 5 -8 80-40- 1000-EB-40-1200 550-25-75-EB-30-900
(given effect from 1.4.19-74)
29. From the aforesaid chart, it would thus appear that the requisite corresponding increase in the respective pay-scale in terms of the recommendations of the Cental Pay Commissions from time to time
time had been made both as regard Assistant Project Officer and Welfare Officer.
30. It has been the contention of the petitioners, which had not been denied or disputed that it is the Department of Expenditure, Ministry of Finance who grants approval as regards the revision in the pay-scale in relation to the autonomous bodies.
31. The learned Tribunal in its impugned order has inter alia relied upon a letter dated 24.10.1997 issued by the Department, which is to the following effect:-
"THE CENTRAL SOCIAL WELFARE BOARD
SAMAJ KALYAN BHAWAN
B-12, Institutional Area, South of I.I.T., New Delhi-110016
F.2-1/F.O./Scale 97-S.B. ADMN.
File No. .....
Shri A.M. Tiwari,
Govt. of India,
Ministry of Human Resource
Development, Department of
Women & Child Development,
Jeevan Deep Building
New Delhi-110 001
Subject: Rationalisation of Pay Scale of Welfare Officers of C.S.W.B. attached to
different State Social Welfare Advisory Boards.
With reference to your letter NO. 1-33/96-C.S.W.B. dated 3.9.97 on the subject cited above I have to say that the 5th Pay Commission's recommendations have already been accepted by the Govt. of India and accordingly it is being implemented by the C.S.W.B. for its employees both at Headquarters and the Field. The Govt. has also decided to pay the October, 1997 month's salary in the revised scale, but since the Govt.'s approval is still awaited on the above subject, it will be difficult to make payment of salary to the Welfare Officer in the revised scale.
You are therefore requested to send your approval for adoption of the following scales of pay for the Welfare Officers in the light of the facts mentioned in earlier letters.
(i) Rs. 2000-3500 w.e.f. 1.1.86 (4th Pay Commission)
(ii) Rs. 6500-10,500 w.e.f. 1.1.96 (5th Pay Commission)
It won't be out of place to mention here that the Executive Committee of the Central Social Welfare Board has already approved the scale of Rs. 2000-3500 for the Welfare Officers w.e.f. 1.1.86 (4th Pay Revision) in its 104th meeting held on Dec. 27, 1991 (copy of Agenda item & Minutes enclosed) which is the Competent Authority to adopt pay scales, allowances & revision thereof and creation & appointment in respect of all posts whose maximum salary does not exceed Rs. 4,500/- p.m. (pre-revised) (Article 13(b) of the Articles of the Association of C.S.W.B. -- copy enclosed).
If the decision of the Government is communicated immediately, we will be able to pay the salary of October, 1997 in the revised scale.
JOINT DIRECtor (F.O. ESTT.)"
32. The learned Tribunal, however, failed to notice that the said letter was not written by the Department of Expenditure. Furthermore, in the said letter, it was categorically stated that the power of the Board is confined only to those employees, who were drawing salary of Rs. 4,500/- or below, which would mean those employees, who had been drawing the total emoluments of Rs. 4,500/-. The total pay drawn by an employee and the scale of pay given to an employee are two different concepts. Even in the said letter, a suggestion was given that the Board may send a proposal to appropriately modify the Memorandum and Articles of Association for the purpose of implementation of the Fourth Central Pay Commission in that regard.
33. The learned Tribunal, therefore, in our opinion, committed an error in interpreting the said letter dated 12.11.1997 in holding that by reason thereof the Board was asked to do the needful at its own level without making reference to the Central Government.
34. The learned Tribunal had also in its impugned judgment failed to take into consideration that recommendations of the Central Pay Commissions having been implemented, the same should have been considered in the context, that parity in the scales of pay for both the posts had not been maintained inasmuch as whereas Assistant Project Officers had been placed in the scale of Rs. 6,500/- -- Rs. 10,500/- by the Fifth Central Pay Commission and the Welfare Officers had been placed in the lower scale of Rs. 5,500/- -- Rs. 9,000/-. Thus, even the Expert Committee did not make any recommendations as regards payment of the same scale of pay both to the Welfare Officers and Assistant Project Officers.
35. The learned Tribunal in no uncertain terms held that so far as the proposal of merger of cadre of Welfare Officers and Assistant Project Officers are concerned, an amendment would be required which was under the consideration of the Government.
36. Such amendment had never taken place. In fact, the learned Tribunal itself has noticed a letter dated 25.10.2000 issued by the Department wherein it was stated:-
"... CSWB be informed that without proper examination, with or without a prior study of the staffing/cadre structure of CSWB, Govt. cannot, prima-facie, accept the merger of the two cadres."
37. The learned Tribunal further noticed another letter dated 29.11.2000 from the Department wherefrom inference was drawn that no serious effort was made to implement the said proposal.
38. The learned Tribunal, therefore, in our opinion, fell into an error insofar as it did fail to take into consideration that the question of grant of same scale of pay to Welfare Officers and Assistant Project Officers would not arise unless there had been a merger of cadre and rule is satiably amended therefore. So long as the post of Assistant Project Officer remains the post of promotion from the post of Welfare Officer, the impugned directions could not have been issued.
39. The learned Tribunal surprisingly while holding that the recommendations of the Fourth Central Pay Commission do not apply to the autonomous bodies, in fact, grant higher relief to the respondents without arriving at the finding as to whether even without effecting merger of two posts by reason of delegated legislation, it could exercise such power. Obviously, it could not have. It did not have the jurisdiction therefore.
40. In Union of India and Ors. v. P.V. Hariharan and Ors. , the Apex Court held:-
"... Before parting with this appeal, we feel impelled to make a few observations. Over the past few weeks, we have come across several matters decided by Administrative Tribunals on the question of pay scales. We have noticed that quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Govt., which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of "equal pay for equal work" is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales..."
41. Yet again in Union of India and Ors. v. Pradip Kumar Dey JT 2000 (Supp 2) SC 449, the Apex Court held:-
"14. In this background as to the position of law touching the controversy raised in this appeal, we have to hesitation in holding that the impugned judgment and order are unsustainable. The learned Counsel for the appellants placed before us a chart showing differences in pay scale, facilities, other allowances, leave period, providing accommodation, etc. for the purpose of comparison between the scales and other facilities of the respondent and similar other employees working in Directorate of Coordination Police Wireless and other Central Government agencies. The learned Counsel for the respondent reiterated that the nature of duties and responsibilities of the respondent are not only similar when compared to other employees similarly placed, but on the other hand they are more hazardous. It is an indisputable fact that the pay scales now claimed by the respondent are those prescribed for the post of Assistant Sub-Inspector. As already noticed above, it is once again a promotional post for a Naik. Acceding to the claim made by the respondent would not merely result in change in the pay scales but may also lead to alteration of the pattern of hierarchy requiring reorientation and restructuring of the other posts above and below the post of respondent. Added to this, such consequences are likely to be felt in the various other Central Police Establishments as well. All these which are likely to have a claim reaction, may require further consideration afresh by expert body like the Pay Commission or the Government itself at an appropriate time in an appropriate manners. Courts should normally leave such matters for the wisdom of administration except the proven cases of hostile discrimination....."
42. It us also trite that the Courts would not pass an order, which may create additional financial burden on the Government.
43. In Krishan Kumar v. Union of India and Ors. , it has been held:-
"39. The next question debated is that of financial implications. It is submitted that given the fact that the budget for the year 1990-91 for disbursement of pension is Rs. 900 crores (as per page 11 of the Budged of the Railway Revenue and Expenditure of the Central Government for 1990-91), the additional liability which would arise by giving relief to the petitioners would be insignificant in comparison. According to the petitioners as per their affidavit dated 15-9-88, the additional liability would come to Rs. 18 crores per annum and this figure would steadily decrease as the number of P.F. retirees diminishes every year due to the fact that this question arises only with respect to very old retirees, and a substantial number of them pass away every year.
40. That Government in its affidavit dated 21-9-88 has stated that the additional liability as far as the Railway employees are concerned would be Rs. 50 crores a year. This is based on the assumption that there are 79,000 surviving P.F. retirees. Apart from the fact that this number of 79,000 was based on calculations made in 1988, and would be greatly reduced by this time, the petitioners submit that the actual number of survivors would only be about 38,000. Thus, the actual burden would be less than half. Further, even assuming that eh figure of 79,000 put forth by the Government is correct, the average annual expenditure per retiree for pension calculated by the Government is incorrect as the calculation includes the non-recurring arrear payments for the year 1987-88. Taking the correct figures of total pension outlay and total number of beneficiaries the per capital pension expenditure per annum works out to Rs. 4521/-. Multiplying this by 79,000 (assuming the figures of the Railways to be correct) the annual expenditure comes to Rs. 35,71 crores. This compared to the current budget of pensions of Rs. 900 crores, is quite insignificant and can be easily awarded by this Court as was done in Nakara , it is urged.
41. It is submitted in the alternative that if this Court feels that a positive direction cannot be made to the Government in this regard, it is prayed that at least an option should be given to the respondents either to withdraw the benefit of switching over to pension from every one or to give it to the petitioners as well, so that the discrimination must go.
42. We are not inclined to accept either of these submissions. The P.F. retirees and pension retirees having not belonged to a class, there is no discrimination. In the matter of expenditure includible in the Annual Financial Statement, this Court has to be loath to pass any order or give any direction, because of the division of functions between the three co-equal organs of the Government under the Constitution."
44. In the Union of India and Ors. v. Tejram Parashramji Bombhate and Ors. , it was held:-
"4. The Tribunal, however, has directed the Central Government immediately to take up an assessment of the needs of the school to carry on its activities at the present level and to create a sufficient number of posts to be filled up on a regular basis. The Tribunal has further directed the Central Government to take steps to fill up the newly created posts in accordance with the recruitment rules to be framed for the purpose. These directions are indeed amazing. It has compelled the government to sanction the Secondary School, create adequate number of posts and fill up the posts after framing the recruitment rules for the purpose. There is no law requiring the Central Government to sanction the Secondary School. The Central Government has taken a decision that it will not involve itself in sanctioning or running classes beyond the Primary School level. It is a policy matter involving financial burden. No court or the tribunal could compel the government to change its policy involving expenditure. The Tribunal therefore, could not have issued the directions as it did to compel the Central Government to assess the needs of the school and create the necessary posts without support of law."
"2. In view of the above finding and in view of the policy decision taken by the Government, it cannot be said that the decision of the Government is arbitrary. No direction can be given to the Government to grant the monetary benefits contrary to its policy, which falls within the realm of the executive policy decision.
46. The question, which, however, remains for consideration is as to whether the petitioners are entitled to an equitable relief having regard to the preliminary objections taken by the respondents in their counter affidavit as noticed hereinbefore.
47. It is incorrect to contend that the petitioners have nt placed all the facts before this Court. It was stated that the Board sought to implement the judgment on the direction of the Department, but later on it was realized that the approval of the Ministry of Finance was necessary for drawing the salary and implementation of the judgment as it had financial implications.
48. Thereafter, two miscellaneous applications were filed for extension of time. However, the Ministry did not grant its approval and advised it to move the application. It is, therefore, not a case where the petitioners can eb said to be guilty of suppression of material.
49. Furthermore, it is not in dispute that the financial implication of the matter has to be borne by the Central Government.
50. The Central Government did not file any such application for extension. The plea of approbation and reprobation thus would not be available against the Central Government.
51. It is true that suppression of fact should be viewed seriously and no relief can be granted, but, as noticed hereinbefore, in the instant case, there has been no suppression of the said facts. In that view of the matter, the decision of the Apex Court in Welcome Hotel's case (Supra) can be said to have no application whatsoever.
52. We agree that the doctrine of approbate and reprobate would apply in the instant case so far as the first petitioner is concerned as has been held by the Apex Court in R.N. Gosain's case (Supra), but the applications appear to have been filed before the Tribunal on a mistaken notion.
53. Nobody had thought of taking approval of the Ministry of Finance and without its concurrence, the judgment of the Tribunal could not have been implemented.
54. Furthermore, the doctrine of approbate and reprobate is a part of the procedural law. Such procedural law cannot stand as a bar when an order is questioned before this Court as being wholly without jurisdiction.
55. In Chief Justice A.P. v. LVA Dikshitulu , the decision of the Tribunal was challenged on a pure question of law viz. interpretation of a constitutional provision, which, if upheld, would make the decision of the Tribunal as having been given by an authority suffering inherent lack of jurisdiction and on that ground the same was held to be not sustainable by invoking doctrine either of res judicata or estoppel. It was observed:-
"Moreover, this is a pure question of law depending upon the interpretation of Article 371D. If the argument holds good, it will make the decision of the Tribunal as having been given by an authority suffering from inherent lack of jurisdiction. Such a decision cannot be sustained merely by the doctrine of res judicata or estoppel as urged in this case."
56. For the reasons aforementioned, although we are of the opinion that the impugned judgment cannot be sustained, but we would like to observe that the manner in which, this litigation has been conducted by the petitioners, is reprehensible. We hope and trust that the concerned Ministry shall enquire into the matter and take appropriate action against the Officers, who appear to have not only wholly misinformed the Tribunal, but also have taken contradictory stands before the Tribunal and this Court.
57. This writ petition is allowed and the impugned orders are set aside, but for the aforementioned situation, the respondents would be entitled to costs, which should be borne by the petitioner No. 1, which is quantified at Rs. 10,000/-.