JUDGMENT
S.K. Gupta, J.
1. The petitioner, D.S. Ahluwalia, a Law Officer Grade-I in the Border Security Force, preferred the present writ petition, claiming parity in rank and pay scale with his counterparts in Coast Guard and National Security Guard on the principle of “equal pay for equal work”. Petitioner further claims that the benefits of up-gradation should not be restricted up to 24.8.1999, while he was performing the same duties, responsibilities and the nature of work, being identical, even prior to the said date.
2. Facts of the case, in brief, may be noticed.
3. According to the averments made in the petition, to arrest the trans-border crime and to inculcate the sense of security amongst the border population, an armed force of Union of India was raised after Indo Pak War of 1965, with a stringent code of conduct namely, Border Security Force Act, 1968, on the pattern of Army Act, 1950, to maintain high standards of discipline in the force. The Law branch was also set-up on the pattern of Judge Advocate General, with same powers, duties and responsibilities. The system of Court Martial was also followed on the pattern of the army. The Coast Guard and NSG were raised as armed forces of the Union subsequently, and adopted the same disciplinary code. The Coast Guard Act and NSG Act were shaped on the pattern of BSF Act with same powers, responsibilities and duties of the Law Officers. The post of Chief Law Officer and Law Officer Grade-I, were sanctioned in the BSF during 1969 and at that time Law Officer Grade-I was placed in the pay scale which was much higher to that of a Commandant on the general duty side. The scale of Chief Law Officer (C.L.O for short) was also comparable to that of a DIG. In order to bring parity, Government, subsequently, submitted the case of BSF Law Officers to the 4th Central Pay Commission (CPC for short) to grant pay scale of DIG to the Chief Law Officer and that of the Commandant to Law Officer Grade-I. When 4th Pay Commission made no reference in its report about the BSF Law Officers, the Ministry of Home Affairs (M.H.A for short) took up the case with the Ministry of Finance (MOF for short) and finally in the year 1993, it was, decided that their case be submitted to 5th Pay Commission, which was appointed by that time. Accordingly, the case was submitted to 5th Pay Commission recommending that BSF Law Officers be brought at par with their counterparts in Coast Guard and NSG, where the Chief Law Officer was in the rank and pay scale of a DIG and Law Officer Grade-I in the rank and pay scale of a Commandant, on the principle of ‘equal pay for equal work’.
4. The petitioner further stated that when the 5th Pay Commission also made no reference in the report about BSF Law Officers, they were given normal replacement scales, which were much lower to their counterparts in Coast Guard and NSG. Aggrieved from the report of the 5th Pay Commission, that came to be published on 30th Jan,1997, the petitioner filed SWP 518/1997 in the High Court, seeking relief to bring the cadre of the petitioner at par with their counterparts in Coast Guard and NSG from the date of implementation of 4th Pay Commission, i.e., 01.01.1986, on the basis of principle of equal pay for equal work’. The High Court then directed the respondents vide its order dated 2.4.1997 to consider the representation of the BSF Law Officers by the Empowered Committee of Secretaries, appointed to examine the issues/anomalies arising from 5th Pay Commission report. The respondents expressed their inability to go into the merits of the case and asked the Ministry of Home Affairs to take up the case of the BSF Law Officers separately. Since Empowered Committee, in the meanwhile, was abolished, another direction was given by the court, vide its order dated 16.3.1998, to respondents 1 to 3 to put up a comprehensive proposal before the Cabinet for up-gradation of the post of Chief Law Officer and Law Officer Grade-I and to bring them at par with the Law Officers of Coast Guard and NSG and get the same through within a period of 90 days. The respondents decided to implement the said order, submitted a proposal to the Union Cabinet and after approval of the Cabinet, up-graded the post of Chief Law Officer and Law Officer Grade-I in the rank and pay scale of DIG and Commandant respectively, in order to bring them at par with their counterparts in Coast Guard and NSG, vide order No. 16/6/88-Pers/BSF/PF.II dated 24th August, 1998. The upgraded posts were further linked with amendment to the Recruitment Rules (RRs for short) of BSF Law Officers to bring these Rules at par with those of the Law Officers in the Coast Guard and NSG.
In the order of 24th August,1998 issued by the Ministry of Home Affairs, Government of India, the posts of Chief Law Officer and Law Officer Grade-I, were upgraded in the rank and pay scale as applicable to their counterparts in the Coast Guard and NSG, by abolishing the existing posts and creating new posts afresh in the revised scales of Rs. 16400-20,000 (DIG) and Rs. 14300-18,300 (Commandant) respectively. Based on this order, the petitioner and other Law Officers were given the upgraded scales w.e.f 24th August, 1998, whereas recommendation of 5th Pay Commission became operative in the case of all Central Government employees including the Law Officers in the Coast Guard and NSG, w.e.f 1st January 1996. Aggrieved from this order and denial of benefits of upgraded scales prior to 24th August, 1998, the petitioner filed a CMP and this Court, while disposing of the said CMP on 16th Feb, 1999, directed the respondents to give full respect to the observations made by Hon’ble Supreme Court in WP NO: 1193/1987 in the case of Shri G.S. Ratheesh Kumar and Ors. v. Union of India and Ors., decided on 14th December, 1987 and take a decision which would end the controversy so that the petitioner does not have to come to this Court again. The respondents considered the matter and rejected the petitioner’s claim of upgraded scales prior to 24th August, 1998 vide its order No. C.17011/09/97/Pers/BSF dated 22nd June,1999 (Annexure F). This order was also agitated in the Court by way of another CMP in which this Court vide its order dated 30th August 1999 directed the petitioner to amend the Writ petition or to take any other steps which may be deemed proper. Hence, the present writ petition.
5. The main issue raised in the petition is the ‘date’ from which the benefits of upgraded posts should be applicable to the petitioner and other Law Officers who have already been brought at par with their counterparts in the Coast Guard and NSG with effect from 24th August, 1998 on the principle of ‘equal pay for equal work’. The petitioner has prayed to quash/set aside the order dated 22nd June 1999 (Annexure ‘F’) and also partially quash the order dated 24th August, 1998 (Annexure ‘C’), being violative of Article 14, 16 and 39(d) of the Constitution of India.
6. Respondents have controverted the claim of the petitioner in their counter and submitted that the petitioner and other Law Officers are not entitled to the upgraded pay scale of Law Officer Grade-I, as the posts in the upgraded scales were created afresh on 24th August, 1998 and did not exist earlier. The respondents also found the date of implementation of the report of 5th Pay Commission in respect of Coast Guard and NSG, i.e., 1.1.1996, as irrelevant with respect to the claim of the petitioner. Order No. C-17011/09/98/Pers/BSF dated 22nd June, 1999 (Annexure ‘F’) vide which the claim of the petitioner and other Law Officers has been rejected by the respondents, is reproduced below:-
“C-17011/09/97/Pers/BSF
Government of India
Ministry of Home Affairs
New Delhi, the 22nd June, 1999
ORDER
Subject: Implementation of Court order dated 16.2.99 in the SWP No. 518/97 filed by Shri D.S. Ahluwalia,
Law Officer Grade-I, Frontier Head Quarters, Jammu.
1. Shri D.S. Ahluwalia, Law Officer, Grade-I, Ftr HQ Jammu filed a SWP No. 518/97 in the High Court of Jammu to bring the cadre of petitioner at par with the their counterparts in the Coast Guard and NSG retrospectively i,e from the date of implementation of the report of the 4th Pay Commission and grant of BSF Chief Law Officer and Law Officer Grade-I, similar pay scales and rank on the principle of equal pay for equal work and to place the case of BSF Law Officers before the Empowered Committee with a further direction to the Empowered Committee to consider and decide the case of BSF Law Officer for removal of disparity/anomaly in their pay scales and to bring them at par with their counter part Law Officers in the Coast Guard and NSG.
2. The case came up for hearing on 2.4.97 and the Hon’ble court passed interim order on 2.4.97 to place the representation of the petitioner and his colleagues before the Empowered committee. The Empowered Committee of Ministry of Finance examined the issue on 8.5.97 and held that since the matter involves increase of pay scales and up gradation such proposals should be moved separately by the concerned department, since the Empowered committee is only a screening Committee for the Vth Pay Commission recommendations, it cannot go into the merits of the demand of BSF Law Officers; which amounts to a complaint on grounds that the Pay Commission did not increase their pay scales and is not based on any adverse impact arising out of the 5th Pay Commission’s recommendation.
3. The petitioner subsequently filed an application for interim relief on the SWP NO. 518/97 seeking speaking orders on the representation, by the Secretary, Ministry of Finance and Secretary, Department of Expenditure, Ministry of Finance (Respondents 2&3).
4. The High Court of Jammu issued an interim order dated 22.8.97 in modification of the order dated 2.4.97 directing the respondent to consider the representation of the petitioner and other Law Officers in accordance with the orders passed by the Court on 2.4.97. Subsequently, the High Court at Jammu vide its order dated 16.3.98 directed:-
“The respondent 1 to 3 (MHA, MOF and Secretary Department of Expenditure, MOF) will consider the case of the petitioner by putting a comprehensive proposal for up gradation of the post to bring Law Officers at par with the Law Officers of Coast Guard and NSG. The proposal to be put up before the Cabinet and the matter be processed by all concerned..”
5. In compliance to the Court order, MHAS with the approval of Cabinet issued orders vide No. 16/6/88Pers/BSF/PF-II/391 dated 24.8.98 upgrading the post of Law Officers of BSF to bring them at par with the post of Law Officers in the Coast Guards. The Recruitment Rules of BSF Law Officers have also been framed and Gazette Notification issued vide GSR-260(E) dated 13.4.99.
6. The petitioner filed an objection petition No. 516/97 in the High Court of Jammu praying direction of the Hon’ble court to upgrade pay scales as contained in the impugned order dated 24.8.98 w.e.f 1.1.96 if not earlier, in the case of BSF Law Officers, like their counterparts in the Coast Guard and NSG.
7. The matter came up for hearing on 16.2.99 and the High Court of Jammu issued ex parte orders on 16.2.99 directing as follows:-
“As indicated, the above is the matter on which respondent Union of India is to take a decision at its own level. It is however, hoped that the Union of India would give full respect to the observations made by the Supreme Court in the Writ petition referred to above (Writ petition No. 1193/87 In the case of Shri G.S. Ratheesh Kumar and Ors. v. Union of India and Ors. decided on 14.12.87 by the Supreme Court of India)”.
8. The matter for grant of upgraded pay scales to Shri D.S. Ahluwalia LO Gde-I and other Law Officers of BSF with retrospective effect from 1.1.96 has been considered by the Ministry of Home Affairs in consultation with the Ministry of Finance, (Deptt. Of Expenditure), keeping in view the above direction of the Hon’ble high Court of Jammu and following has emerged:-
(a) There is no relevance of the date 1.1.96 in this particular case. The posts of Law Officers have been up graded in pursuance of the decision of the Cabinet. The Coast Guard and NSG organizations had been provided the replacement pay scales and not upgraded pay scales w.e.f 1.1.96 based upon the recommendation of 5th Central Pay Commission. The Law Officers of BSF also have got the replacement pay scales corresponding to their pre-revised pay scale as the Vth CPC relating to up gradation of posts of BSF Law Officers to bring them at par with the Law Officers in Coast Guard and NSG organizations. Hence, there is no relevance of 1.1.96 as the date on which the Law Officers of BSF should get their new pay scales in the upgraded posts.
(b) In the case of Skri G.S. Ratheesh Kumar and Ors. v. Union of India and Ors. cited by the Hon’ble High Court of Jammu, the IVth Central Pay Commission had made a specific recommendation which the Government of India implemented from the prospective date, and which the Supreme Court allowed retrospectively w.e.f 1.1.86. In the present case, no recommendation has been made by the Vth Central Pay Commission regarding up gradation of the posts, and the date of 01.01.96 has no significance. This was not the date from which either the upgraded pay scale had been granted to the Coast Guard/NSG, nor the date from which Vth Central Pay Commission had made any specific recommendation for up gradation of the pay scale of the posts of BSF Law Officers.
(c) In this case, it a conscious decision of the Govt that the existing incumbents will be appointed against the upgraded posts only when they fulfill all the requirements of the amended Recruitment Rules and posts would be operated in the present grade till regular appointments are made.
(d) As per the General Financial Rules, normally all such proposals have prospective effect only.
9. Keeping in view all the above factors, it has not been possible to grant the upgraded pay scales to the BSF Law Officers with effect from 1.1.96.
10. In view of the above, Shri D S Ahluwalia, LO Gdr-I Ftr HQrs, Jammu and other Law Officers of BSF are not entitled for the benefits of higher pay as impugned in Ministry of Home Affairs order No. 16/6/88-Pers/BSF/PF-11/391 dated 24.08.98 w.e.f 1.1.96. They will be entitled for the benefit of pay as per the said order, i,e w.e.f the date when they fulfill all the requirements under the amended recruitment rules, and are appointed against the upgraded post.
11. This order is issued with the concurrence of the Department of Legal Affairs, Ministry of Law communicated vide their Dy. No. 2102/98/Advise “A” Section dated 18.6.99.
Sd/- xxxx
(Rakesh K. Gupta)
Deputy Secretary to the Govt of India”
The respondents have stated that the petitioner and other Law Officers cannot be granted upgraded scales prior to 24th August, 1998, as the posts in the upgraded rank and pay scales did not exist prior to the said date in the light of order No. 16/6/88-Pers/BSF/PF-II dated 24th August,1998. The petitioner, on the other hand, has prayed for a direction from this Court to quash this order to the extent of creation of new posts instead of up-gradation of the existing posts, to bring them at par with the Law Officers of Coast Guard and NSG. The petitioner has further requested for a direction to quash the order dated 22nd June, 1999 by which he and other Law Officers have been denied the benefits of upgraded posts right from the dates they are holding these posts and performing the same duties and responsibilities on the principle of ‘equal pay for equal work’.
7. I have heard the arguments put across by the learned Counsel appearing for the respective parties and also perused the record of file meticulously.
8. The whole controversy in this case revolves around the date from which the petitioner and other Law Officers in the BSF would be entitled to the benefits of upgraded posts of Chief Law Officer and Law Officer Grade-I and whether they would be entitled to these benefits even prior to 24th August, 1998 when impugned letter was issued by the respondents. For facility of reference, the letter dated 24th August,1998 is reproduced below:-
“No. 16/6/88-Pers/BSF/PF-II
Government of India
Ministry of Home Affairs
New Delhi, the 24th August, 1998
To
The Director General
Border Security Force
CGO Complex, Lodhi Road
New Delhi-110003.
Sub:- UPGRADATION OF THE POST OF LAW OFFICERS IN THE BSF TO BRING THEM AT PAR WITH THEIR COUNTER PARTS IN THE NSG AND COAST GUARD.
Sir,
1. I am directed to convey the sanction of the President to the creation/abolition of the following posts to bring them at par with their counterparts in the NSG and Coast Guards:-
(a) Creation of Chief Law Officer and Chief Law Officer (Discipline & Litigation) in the BSF in the scale of pay of Rs. 16,400-20,000/- (Equivalent to DIG) by abolition of the posts in the existing revised scale of Rs. 14,300-18,300/-.
(b) Creation of Law Officer Gr.I in the scale of Rs. 14,300-18,300/-by abolishing the said posts in the existing revised scale of Rs. 12,000-16,500/-.
The amendments in the Recruitment Rules of BSF Law Officers mentioned above may be made so as to bring them at par with those of Law Officers in the Coast Guards.
3. The existing incumbents will be appointed against the upgraded posts only when they fulfill the requirements of the amended Recruitment Rules and the posts may be operated in the present grade till regular appointment are made.
4. The orders will be effective with immediate effect.
5. This issues with the approval of integrated Finance Division vide their Dy. No. 1280/98/Fin.III dated 24.8.98.
Sd/-
(Neeraj Kataria)
Desk Officer.”
9. Shri M.K. Bhardwaj, learned senior counsel for the petitioner has invited my attention to the Recruitment Rules of BSF Law Officers dated 13th April 1999 (Annexure ‘D’), comparative chart of BSF recruitment Rules (old and new) and Coast Guard (Annexure ‘E’), duties and responsibilities of BSF Law Officers vis–vis their counterparts in the Coast Guard and NSG and certain judgments of Honorable Supreme Court in support of his case.
10. There appears to be no dispute regarding application of the doctrine of ‘equal pay for equal work’ in the case of BSF Law Officers vis–vis their counterparts in the Coast Guard and NSG. The respondents, at no stage, have denied nor disputed application of this doctrine in their Counter or earlier when this Court had given liberty to the respondents to file objections, if any, before submitting comprehensive proposal to the Cabinet, vide its order dated 16th March 1998. The respondents have complied with the said order without controverting it. Even in the present counter, this aspect has not been controverted. I, therefore, do not consider it necessary to again examine the applicability of the principle of ‘equal pay for equal, work’, once this issue stands settled already. Moreover, my attention has also been invited by Learned Counsel for the petitioner to a note forwarded by MHA to the Secretary (Expenditure) and Chairman, Empowered Committee, Ministry of Finance, in support of the claim of BSF Law Officers. For facility of reference, the said note which is annexed with the present Writ Petition at Annexure ‘B’ is reproduced below:
LAW OFFICERS
The Pay Commission have recommended the following replacement scales for the Chief Law Officer and Law Officer Gde-I in NSG, ITBP & Coast Guard.
CHIEF LAW OFFICERS
______________________________________________________________________________
Name of CPMFs Existing scale Scale proposed By Demanded by the
Vth PC by the CPMFs
NSG 5100-6150 16400-450-20000 -
Coast Guard -do- -do- -
ITBP 4500-5700-200+ 14300-400-18300+ -
Special Pay Special pay
BSF
One post 4100-5300 Report is silent 16400-450-20000
One post 4500-5700 Report is silent -do-
Army 5900-6700 18400-500-22400 -do-
LAW OFFICER
GRADE -I
NSG 4500-5300 14300-400-18300 -
Coast Guard -do- -do- -
ITBP 4100-5300 -do- -
BSF 3700-5000 -do- -
Army 2300-5100Rs. 15350-450-17600
1200 (Rank Pay) Rs. 2400 (Rank Pay)
_______________________________________________________________________________
The Pay Commission report is silent on the Law Officers in the BSF. However, in para 63.104 of the report, the Pay Commission has observed “pay scales of Coast Guard personnel broadly correspond to pay scales of personnel in Central Police Organisation, like BSF and certain allowances are also paid on the pattern of BSF because of their similar functions”.
Therefore, BSF has demanded the pay scales for Law Officers Grade-I and Chief Law Officers at par with Coast Guard and NSG. This is specially because, the Law Officers perform important judicial functions with regard to the implementation of the BSF Act which is similar to the Army Act. The CRPF, AR and CISF Acts are not modeled on the Army Act.
The Ministry of Home Affairs is of the view that the demand of the BSF to bring the pay scales of the Chief Law Officers and Law Officers Grade-I at par with that of the Coast Guard and the NSG is justified and needs consideration specially in view of the fact that, the BSF is a much larger force than the NSG, ITBP or the Coast Guards and the BSF Act is modeled on the Army Act. In the Army, the JAG (CLO) is of the rank of Major General in the pay scale of Rs. 5900-6700/- for which a replacement scale of Rs. 18400-500-22400/-has been recommended by the Pay Commission.
Impact in other Services
There will be no impact on other services, in fact, parity with Coast Guards and NSG will be restored.
FINANCIAL IMPLICATIONS
The financial implications would be negligible.”
11. It is evident from the above note that the MHA itself had recommended the case of BSF Law Officers to the 5th Pay Commission to grant them parity with their counterparts in the Coast Guard and NSG and when it did not materialize, again recommended their case to the Secretary (Expenditure), M.O.F (Empowered Committee). It is further evident that when empowered committee expressed its inability to examine the case on merits, the MHA submitted a comprehensive proposal to the Cabinet to bring these officers at par with their counterparts in the Coast Guard and NSG without submitting any objection to this Court inspite of the liberty having been granted to the MHA in this regard.
12. The comparative chart of Recruitment Rules of Law Officers in the BSF vis–vis their counterparts in Coast Guard reveals that for the post of Chief Law Officer in the BSF, a person who has been a member of State Judicial service for not less than a period of 15 years or a State/Central Government employee with an experience of legal affairs in a Gazetted post for not less than 15 years, is eligible. Similarly, for the post of Law Officer Grade-I, an experience of not less than 10 years in State Judicial Service or in a Gazetted post in legal department of the State/Central Government, is essential. On the other hand, in the Coast Guard, Section 115 of the Coast Guard Act, 1978, which regulates the appointments of Chief Law Officer and other Law Officers, provides an experience of 10 years in judicial service as sufficient for the post of Chief Law Officer and only six years experience in dealing with legal matters for the post Law Officer Grade-I against 15 years and 10 years, required for the post of Chief Law Officer and Law Officers Grade-I respectively in the BSF. The comparison further reveals that even the old recruitment rules of BSF Law Officers prescribed more stringent conditions of eligibility as compared to their counterparts in the Coast Guard and, therefore, there was perhaps no requirement to frame entirely new rules of Recruitment for Law Officers in BSF by repealing the earlier RRs and then bring them at par with the Recruitment Rules of General Duty Officers instead of Law Officers in the Coast Guard, more so, when this Court was apprised in writing that the respondents were amending the RRs to bring them at par with that of their counterparts in the Coast Guard. There is no explanation as to why the respondents have deviated from their stand taken before this Court in para 3 of the letter dated 24th August, 1998 (Annexure ‘C’). No such intimation or permission seems to have been taken by the respondents that they were framing new RRs for Law Officers in line with the RRs of GD Officers. Ordinarily, in a case of this kind, when a letter is issued after approval of the Cabinet and is placed before the High Court with a clear stipulation, it is not supposed to be violative/diluted/deviated, without bringing it to the notice of the Court. I do not propose to pass any order with respect to the new recruitment rules of BSF Law Officers, as there is no prayer in the writ petition to interfere with the said RRs.
13. Mr. M.K. Bhardwaj, learned Senior counsel for the petitioner, in order to buttress his arguments with regard to the applicability of doctrine of equal pay for equal work and also to justify the entitlement of the petitioner and other Law Officers to claim the benefits of up-graded posts right from the dates they were holding these posts and performing same duties and responsibilities, relied upon the judgment of the Apex Court in Shri Alvare Noronha Ferriera and Anr. v. UOI and Ors., (JT 1999 (3) SC 223).
14. In this case, some Judges, whose function was dispensation of justice, had to approach the High Court for justice based on the doctrine of ‘equal pay for equal work’ but they were non-suited by a Division Bench of the High Court. The nub of their grievance was that when scale of pay of their counterparts in the Union Territory of Delhi was increased, while working in the same cadre in Union Territory of Goa, they were not given that pay scale. Facts are simple. On 20.12.1961, the territories of Goa, Daman and Diu were liberated from the suzerainty of Portugal in 1962 and Goa became part of the Union Territory of India. Appellants were District Judges posted in the Union Territory of Goa. On 3.9.1981 the pay scale of judicial officers (in the category of additional District & Session Judges) in the Union Territories was same as Rs. 1200-2000. In 1982 the Union Territory of Delhi increased the scale of pay of such judges to Rs. 2000-3200 while their counterparts in the Union Territory of Goa were not given any increase to keep, the scale at par with the former. When the Fourth Pay Commission was formed, representations were made by the Judicial officers of Goa to rectify the anomaly which, according to them, came into existence for the first time in 1982, but no relief was provided to them. On the contrary, the recommendations of the pay commission were for raising the scale of pay of Delhi Judges to Rs. 4500-5700 while that of Goa Judges the pay scale was raised only to Rs. 3000-5000.
15. The Division Bench of the High Court declined to grant relief, as learned Judges were unable to appreciate on what basis they could claim to be entitled to the same pay scales, as those available to Judicial Officers in Delhi. The Apex Court had allowed the appeal and observed:-
“The principal of ‘equal pay for equal work’ has gained judicial recognition. The principle incorporated in Article 14 when understood from the high angle provided in Article 39(d) of the Constitution is held to be the recognition of the aforesaid doctrine. It has been held in Randhir Singh v. Union of India, (1982 (1) SCC 612 that the principle “Equal pay for equal work” is not an abstract doctrine but one of substance. Their Lordships pointed out. “To the vast majority of the people in India the equality clauses of the Constitution would mean nothing if they ate 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.”
16. While allowing the appeal and directing the respondent-Union of India to disburse the arrears of pay to the appellants at par with their counterparts in the Union Territory of Delhi, the Hon’ble Supreme Court also held that the nature of work of District and Session Judges is the same though in some areas pendency of cases would be higher than others. Differences in the back log are not uncommon even in two different stations of the same territory, say, in two different courts of the same station. Such lopsidedness is hardly the ground to conclude that the nature of work done by one judicial officer at one place is different from other. The duty hours would be substantially the same; the powers to be discharged are in no way different, whether they are district Judges in Goa or in Delhi. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for, such differences are discernible everywhere.
17. In Raj Bidichandani v. Union of India, (1997) 11 SCC 601, Bilingual Stenographers in Official language Wing of Ministry of Law and Justice of GOI treated on a par with Stenographers Grade ‘C’ in Central Secretariat Stenographers Service and given the same pay scale (Rs. 425-800)-Subsequent to the recommendation of Fourth Pay Commission, again, both Bilingual Stenographers and Stenographers Grade ‘C’ placed in the same revised scale (Rs. 1400-2600)- on CAT’s order the Stenographers Grade ‘C’ placed in a still higher scale (Rs. 1640-2900) w.e.f. 1.1.1986-On an application filed by the Bilingual Stenographers on 10.12.1993, CAT finding them to be entitled to the higher revised scale (Rs. 1640-2900) on the ground of parity with Stenographers Grade ‘C’- In such circumstances, while directing the Bilingual Stenographers to be paid arrears of salary in the higher scale (Rs. 1640-2900) w.e.f. the date of the application (10.12.1993), the Hon’ble Supreme Court held that CAT should have directed the notional pay of the Bilingual Stenographers in that scale to be fixed w.e.f. the date that scale was granted to Stenographers Grade ‘C’, i.e., 1.1.1986 and not from the later date of the Bilingual Stenographers’ application, viz, 10.12.1993.
18. Again in G.S. Ratheesh Kumar and Ors. v. Union of India (WP(civil) No. 1193/1987 decided on 14 Dec 1987), the members of Ministerial Staff of BSF and CRPF, who were getting lower scale of pay as compared to their counterparts in the ITBP and CISF, had approached the Apex Court after IVth pay Commission, when the Government denied them the benefits of upgraded scale w.e.f. 1.1.1986, i.e., the date from which this scale was given to their counterparts in the ITBP and CISF. The Hon’ble Supreme Court, while disposing of the writ petition, vide its order dated 14th Dec, 1987, directed that the petitioners are entitled to the revised pay scale w.e.f. January 1, 1986, which is the date applicable to the Central Government employees, instead of 11th January, 1987. It is ordered accordingly. Ministerial Staff in the BSF and CRPF were given upgraded scale w.e.f. 11th January, 1987, i.e., the date of order of upgradation issued by the Government and not from 1.1.1986, when all employees of the Central Government including ITBP and CISF were given the benefits of the upgraded scale.
19. To further support his contention, Mr. M.K. Bhardwaj, learned senior counsel for the petitioner, referred to copy of order No. 17/32/99-Pers/BSF/Pers-III dated 13th October, 1999 issued by Government of India, Ministry of Home Affairs. For facility of reference the order is reproduced below:-
“No. 17/32/99-Pers/BSF/Pers-in
Government of India
Ministry of Home Affairs
New Delhi-110001,
Dated the, 13th October, 1999
ORDER
Consequent upon the up gradation of the posts of Law Officers Grade-I in the pay scale of Rs. 14,300-400-18,300 by abolition of posts in the existing revised scale of Rs. 12,000-16,500 in the Border Security Force vide MHA Order No. 16/6/88-Pers/BSF/PF-II/391 dated 24th August, 1998 and subsequent notification of Border Security Force, Chief Law Officers and Law Officers Recruitment and Conditions of Service Rules, 1999 vide G.S.R No. 260(E) dated 13th April, 1999, the following Officers of BSF are hereby appointed in the upgraded pay scale of Rs. 14,300-400-18,300 with effect from the dates noted against each.
Upon their placement in the upgraded scale, they will continue to maintain their original seniority in the post of Law Officer Grade-I as mentioned against each:-
S. No
Name
Date from which Appointment as Law Officer Gde-I in the upgraded Pay scale of Rs. 14,300-400-18,300
Date from which Seniority will be maintained as Law
Officer Gde-I
(i)
Shri HG Garg Law Officer Gde-I (IRLA-2290)
24.8.1998
16.01.1990
(ii)
Sh. B P Vashist Law Officer Gde-KIRLA-19716)
24.8.98
03.12.1993
(iii)
Sh. K.J.S. Bains Law Officer Gde-I
(IRLA-30597)
17.9.99
06.03.1995
(iv)
Sh. Kuldeep Saini Law Officer Gde-I (IRLA-30603)
17.9.99
15.11.96
Sd/-xxxxxxxx
(A. Bhattacharyya)
Under Secretary to Govt. of India”
20. The above order mentions two dates in front of each name, i,e., the date from which appointed as Law Officer Grade-I in the upgraded pay scale of Rs. 14,300-400-18,300 and the date from which seniority will be maintained as Law Officer Gde-I. Shri Sandeep Singh, learned counsel for the respondents could not place any document or details on record to show that these officers were not performing the same duties and responsibilities before these posts were upgraded. It is also not the case of the respondents that the duties and responsibilities, being performed by these officers, prior to 24.8.1998 were, in any way, less or not the same what they performed after up-gradation of the posts. The duties and responsibilities of Law Officers in the BSF vis–vis Coast Guard and NSG are given in their respective Acts and Rules and there has been no change to the said duties and responsibilities after up-gradation of these posts. The only plea taken by learned counsel for the respondents is that the petitioner and other Law Officers can not be granted upgraded scales, as the posts in earlier scales were abolished and upgraded posts were created only on 24.8.1998. According to him, since the upgraded posts did not exist prior to 24th August,1998, they cannot be given the benefits of the upgraded posts of CLO and Law Officers Grade-I prior to 24th August,1998.
21. After taking conspectus of exhaustive view of almost all the decisions appearing on the question of Article 14 and considering the rival contentions of the parties, besides perusal of various orders referred supra and placed on record, there does not seem to be any ambiguity or dispute that the Law Officers in the BSF were performing same duties and responsibilities and the nature of work being identical to their counterparts in Coast Guard and NSG and, therefore, principle of equal pay for equal work was applicable in their case. It has also not been denied or disputed that these officers performed the same duties and responsibilities even prior to the upgradation of the posts. There was no change in their role or duties and responsibilities before or after 24th August, 1998, when the impugned order was issued by the Government. It is also admitted that the Law Officers in the Coast Guard and NSG were given revised scales of pay with effect from 1.1.1996, i,e., the date from which the report of 5th Pay Commission was implemented in the case of Central Government employees, including the Coast Guard and NSG. However, the petitioner and other Law Officers in the BSF have been denied the upgraded scales of pay, inter-alia, on the ground that the date ‘1.1.1996’ was not relevant in their case. The main argument put forward is that the upgraded posts were created on 24th August, 1998 and did not exist earlier by virtue of abolition of the earlier posts. This argument does not hold water and is not acceptable. The record shows that, at no stage, the posts of Law Officers (Chief Law Officer and Law Officer Grade-I) were recommended to be abolished or created afresh in the BSF. On the contrary, the record clearly shows that right from the stage of 4th Pay Commission and even prior to that, the BSF as well as the MHA had recommended the Chief Law Officer and Law Officer Grade-I to be placed in the rank and pay scale of DIG and Commandant respectively.
When 4th Pay Commission made no reference of the Law Officers in its report, the BSF as well as the MHA took up their case with the Ministry of Finance, recommending the said posts to be upgraded. As per decision taken by the Government, the case of the petitioner and other Law Officers was then placed before the 5th Pay Commission, recommending them to be brought at par with their counterparts in the NSG and Coast Guard. When 5th Pay Commission also made no reference about the Law Officers in its report, the matter was agitated before the Court by way of SWP NO: 518/97, which was filed soon after the report of 5th Pay Commission was published and accepted by the Government.
22. The principle underlining the guarantee of Article 14 is that all persons similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another. The other facet of Article 14, which must be kept in mind, is that it eschews arbitrariness in any form. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where the action of the competent authority is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. In nutshell, Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
23. Further contention of Mr. Bhardwaj, learned Senior counsel for the petitioner, is that Union Of India should have acted as a model employer and treated its employees in just and fair manner. His further submission is that the case of the petitioner has been made complicated by using the words ‘creation’ and ‘abolition’ in the order dated 24.8.1998 by the respondents with an intention to deny the follow-up benefits of up-graded posts to the petitioner and other Law Officers, prior to 24.8.1998. In this context it has to be pointed out that the documents placed before me, make it clearly manifest that it was a simple case of up-gradation of posts to bring them at par with their counterparts and, therefore, it was improper and totally unjustified to create new posts by abolition of posts which existed earlier right from 1969. The Apex Court in a similar situation considered this aspect of the matter in case D.S. Nakara and Ors. v. Union of India, (1983) 1 SCC 305 and observed as under:-
“There is nothing immutable about the choosing of an event as an eligibility criteria subsequent to a specified date. If the event is certain but its occurrence at a point of time is considered wholly irrelevant and arbitrarily selected having no rationale for selecting it and having an undesirable effect of dividing homogeneous class and of introducing the discrimination, the same can be easily severed and set aside. While examining the case under Article 14, the approach is not; ‘either take it or leave it’, the approach is removal of arbitrariness and if that can be brought about by severing the mischievous portion the court ought to remove the discriminatory part retaining the beneficial portion”.
24. The petitioner seeks the benefit of up-graded post prior to 24.8.1998 and from the date it has been given to their counterparts in Coast Guard and NSG. His grievance is about the denial of the same in full, by arbitrary introduction of the words “creation/abolition”. However, I do not propose to set aside the order dated 24.8.1998 in full, but direct the removal of discriminatory part by severing the mischievous portion “creation/abolition”, while placing reliance upon the judgment of the Apex Court referred supra and shall be read as if the post of Chief Law Officer and Law Officers Grade-I were simply up-graded to bring them at par with their counterparts in Coast Guard and NSG.
25. I am also convinced that denial of benefits of the upgraded posts to the BSF Law Officers, from the same date it was made effective in the case of Coast Guard and NSG, was discriminatory. I, therefore, direct the respondents to grant all benefits of upgraded posts along with arrears to the petitioner and other Law Officers with effect from 01.01.1996. As regards the intervening period from 01.01.1986 when the recommendations of 4th Pay Commission were implemented to 01.01.1996 it is on record that the matter of upgradation of the posts remained under regular correspondence right from the stage of 4th Pay Commission. The case was under consideration of the Government for all these years till it was finally decided in the year 1993 that their case be submitted to the 5th Pay Commission which was appointed in 1993. The Law Officers in BSF continued to discharge the same duties and functions during that period also. I, therefore, find no justification in denying them their legitimate right of equal pay for equal work for the intervening period also. The Law Officers have not approached the court immediately after the 4th Pay Commission report was implemented by the Government, but there was perhaps no occasion or cause to approach the Court at that stage, when their grievances were under active consideration of the Government.
26. I, therefore, direct the respondents to grant them parity in the matter of rank and pay scales with their counterparts in the Coast Guard and NSG right from the stage of 4th Pay Commission report, i.e., with effect from 01.01.1986. I further direct the respondents to give full effect to the order of 13th October, 1999 and give BSF Law Officers the benefit of upgraded scales, which were applicable to their counterparts in the Coast Guard and NSG on the ‘dates’ these officers were appointed as Chief Law Officer or Law Officer Grade-I, i,e., the dates shown in column No. 4 of order No. 17/32/99-Pers/BSF/Persw-III dated 13th October, 1999. They will, however, not be entitled to arrears for the period prior to 1.1.1996 and their pay may be fixed notionally in the upgraded scales for that period. It will be unfair to link their upgradation with the Recruitment Rules when these recruitment Rules are found to be in violation of the undertaking given to the Court and when the principle of ‘equal pay for equal work’ has been accepted in toto.
27. It has been brought to my notice that the Cadre of Law Officers in the BSF is very small consisting of 02 Chief Law Officers, 08 Law Officers Grade-I and 02 Law Officers Grade-II. The Law Officers Grade-II are not Affected, as they are already having parity in the rank and pay scale with their counterparts. The MHA in its letter No. II-27012/26/97/PE-II dated 7th April, 1999 (Annexure B), which was written to the Secretary (Expenditure), Ministry of Finance, Government of India, had observed that the financial implication would be negligible and that there will be no impact on other services, in case parity with Coast Guard and NSG will be restored.
28. I have examined order No. C.17011/09/97/Pers/BSF dated 22nd June, 1999 (Annexure F), vide which the petitioner and other Law Officers were denied the benefits of upgraded scales prior to 24th August, 1998. The respondents seem to have ignored the spirit of the order of the Hon’ble Apex Court in the case of Shri G.S. Ratheesh Kumar and Ors. v. Union of India and Ors. (supra), vide which the Government was directed to grant consequential benefits of upgraded posts with effect from 01.01.1986, i,e., the date from which the pay scales were made effective in the case of CISF and ITBP. I find this order to be discriminatory, the grounds of rejecting their claim are unfair and unjustified and, therefore, I set aside the order dated 22nd June, 1999 being violative of Articles 14, 16 and 39(b).
In view of the aforesaid facts and circumstances of the case, I allow the writ petition. The petitioner and other Law Officers in the BSF are held entitled to parity with their counterparts in the Coast Guard and NSG right from the stage of 4th Pay Commission, i,e., 1.1.1986. They would, however, be entitled to arrears of upgraded posts with effect from Ist Jan, 1996. For the period prior to 1.1.1996, their pay be fixed notionally from the dates they are holding the posts as Chief Law Officer and Law Officers Grade-I, at par with their counterparts as mentioned above. I further direct the respondents to work out the financial benefits to which the petitioner and other Law Officers are entitled and release the same within a period of three months from the date a certified copy of this order is made available to the respondents.
The petition is disposed of accordingly.