PETITIONER: STATE OF W.B. Vs. RESPONDENT: HARI NARAYAN BHOWAL DATE OF JUDGMENT16/03/1994 BENCH: SINGH N.P. (J) BENCH: SINGH N.P. (J) SAWANT, P.B. CITATION: 1994 SCC (4) 78 JT 1994 (2) 610 1994 SCALE (2)263 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
N.P. SINGH, J.- Leave granted.
2. This appeal has been filed on behalf of the State of
West Bengal, against an order passed by the High Court,
directing the State Government, to give the same pay scale
and other benefits, which are payable to the Constables of
the West Bengal Police Force, to the writ petitioner-
respondents (hereinafter referred to as the ‘respondents’),
who are the members of the West Bengal National Volunteer
Force.
3. The respondents were employed as ‘Agragamies’ otherwise
called Volunteers attached to Biswakarama Battalion.
According to respondents, as they have been appointed in
accordance with the provisions of the West Bengal National
Volunteer Force Act, 1949 (hereinafter referred to as the
‘Act’) and as they have been performing the duties of
Constables while maintaining law and order, they should be
treated on a par with the police Constables of West Bengal;
they are entitled to the same scale of pay and other
benefits which are payable to such Constables. It was
pointed out on their behalf, that the revised scale of pay
introduced by the Government, for the National Volunteers,
was highly discriminatory in nature and different from the
members of the West Bengal Police Force although the
respondents not only perform the duties of Constables while
maintaining law and order, but perform even the duties of
brick-laying, carpentry, painting, plastering, flooring,
pumping and electrical wiring. They have to construct roads
and highways as well, apart from guarding the vital
installations.
4. A learned Judge on the principle of “equal pay for equal
work”, directed the State Government to consider the case of
the respondents, in the light of the judgment of the same
court in the case of Madan Mohan Sen v. State of W.B. 1 in
which the High Court had directed to pay the Agragamies, who
were the members of the West Bengal Civil Emergency Force,
the scale of pay and benefits, which were payable to the
firemen in the West Bengal Fire Service. The Division
Bench, affirmed the direction given by the Single Judge,
saying that as the Agragamies have been performing and
discharging the duties of the Constables, they were entitled
to the same scale of pay and other allowances, which are
payable to the Constables of the West Bengal Police Force;
the denial of said scale and benefits amounted to
discrimination within the meaning of Article 14 of the
Constitution.
5. On behalf of the appellant-State, it was pointed out by
a reference, to the comparative data which had been filed
before the High Court regarding the Agragamies in the West
Bengal National Volunteer Force and the
1 F.M.A.T. No. 1841 of 1986, decided on Nov. 21, 1990 (Cal
HC)
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Constables in the West Bengal Police Force, that Agragamies
are recruited from amongst the trained members of the
National Volunteer Force, or from amongst the ex-servicemen,
whereas the Constables in Police Force are recruited on
selection, by process of direct recruitment. The
qualification prescribed for Agragamies is Class VI passed,
whereas for Constables the qualification is Class VIII
passed. There is also difference in the minimum physical
standard required for the two. The duty to be performed by
the Agragamies are (1) to aid the police force to meet law
and order situation, (2) to attend emergencies on call, in
times of Dock Strike, Corporation Strike and similar other
situation of unrest, (3) to attend emergency duties in times
of natural calamities e.g. flood, storms, earthquake etc.,
and (4) to guard vital installations in Union/State
Undertakings, e.g., DPL, DCL, RCFA, WBSEB and Water
Treatment Plants, etc. whereas the duties of the Police
Constables, are maintenance of law and order and prevention
of crime. It further appears that Agragamies are Class IV
employees in the State Government Service, while Constables
are Class III employees.
6. In the Act “Force” has been defined to mean West Bengal
National Volunteer Force. “Volunteer” has been defined
under Section 2(g) to mean a person enrolled as a member of
the West Bengal National Volunteer Force or any unit or
corps of the Force established, constituted or formed, as
the case may be under the proviso to Section 3 or Section 7.
Section 3 says that the State Government may raise and
maintain “a volunteer force to be called the West Bengal
National Volunteer Force” and for that purpose enrol persons
as volunteers from Calcutta and elsewhere in West Bengal.
The functions of a volunteer have been prescribed in Section
4, saying that when called upon, he shall discharge such
functions in relation to the protection of persons, the
security of property and preservation of the public peace in
any area within West Bengal and such other functions as may
be assigned to him by or under the said Act. Section 7
vests power in the State Government to direct that one or
more corps or units of the force be constituted or formed
for any particular region within West Bengal or for any
specified purpose. Section 8 says :
“8. (1) Any citizen of India or any person
having a permanent domicile in West Bengal who
may offer himself for enrolment in the Force
and who satisfies the prescribed conditions
may be eligible for enrolment therein by such
authority, in such manner and for such period
not exceeding five years as may be prescribed.
(2) Every volunteer shall receive a
certificate of appointment in the prescribed
form and such certificate shall be issued by
such authority as may be prescribed and
thereupon he shall have the powers, privileges
and protection conferred, and shall discharge
the duties imposed, on a volunteer by or under
this Act.
(3) Every volunteer enrolled under this Act
shall undergo such preliminary and periodical
training as may be prescribed.
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(4) Every person enrolled as a volunteer
under this Act shall be entitled to receive a
certificate of discharge in the prescribed
form on the expiration of the period for which
he was enrolled and any such person may, prior
to the expiration of that period, be
discharged by such authority subject to such
conditions as may be prescribed, and shall be
so discharged on the recommendation of the
Advisory Committee in this behalf.
(5) The prescribed authority may, subject to
such conditions as may be prescribed
(a) suspend, discharge, dismiss or remove
any volunteer from his office and thereupon
the certificate referred to in sub-section (2)
shall cease to have effect, or
(b) disband any unit constituted under this
Act and thereupon every volunteer of such unit
shall vacate office.”
Section 12 provides that a volunteer, when called upon for
duty under subsection (al) or sub-section (1) of Section 10
to aid the police force, such volunteer shall work under the
orders of or be under the control of such officers of the
police force as may be prescribed.
7. On plain reading of the different provisions referred
to above, it appears that West Bengal National Volunteer
Force is a force of volunteers. When called upon for duty,
the volunteer has to discharge such functions in relation to
protection of persons, the security of property and
preservation of the public peace in any area within West
Bengal and such other functions as may be assigned to him.
Any citizen of India or any person having a permanent
domicile in West Bengal may offer himself for enrolment in
the force and if he satisfies the prescribed conditions, he
may be enrolled by the prescribed authority for such period
not exceeding 5 years. Every person enrolled as volunteer
under the said Act, on expiration of the period for which he
had been enrolled or even prior to the expiration of the
said period be discharged in accordance with the procedure
prescribed under sub-section (4) of Section 8. It is true
that such volunteer force has to perform when called upon,
the duties of the police force while maintaining law and
order. But according to us, the whole concept of the
National Volunteer Force, is different from that of the
police force. In respect of the volunteers, it can be said
that it is a standby force, not only for law and order, but
for different emergencies, to aid and help the regular
police force or members of the other services.
8. It appears, the Pay Commission examined the scales of
pay of the volunteers of National Volunteer Force and the
Constables of the West Bengal Police Force. On the basis of
the relevant material different scales of pay for them was
recommended. The High Court having found that the nature of
work of the respondents was more or less that of the
constables of the police force, especially, when they are
called upon to maintain law and order, held that there was
no justification to deny the same scale of pay, to the
respondents on the principle of “equal pay for equal work”.
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9. In public services, nature of work in two services or
in the same service, the nature of the work of the two
groups may be more or less same. But merely on that ground
they are not entitled to the same scale of pay. It is well
known that scales of pay are fixed by expert bodies like the
Pay Commissions, which consist of persons having specialized
knowledge of the subject. Such Commissions while fixing the
scales of pay or revising the same, have to go in depth, not
only into the nature of work by members of the same service
and members of different services but also various other
factors before the scales of pay are fixed. One of the
primary concerns of such Pay Commissions is to remove any
anomaly and to see that members of different services get
scales of pay and other emoluments not only according to the
nature of work but also according to educational
qualifications, responsibilities of the posts and experience
etc. As such, before any direction is issued by the court,
the claimants have to establish that there was no reasonable
basis to treat them separately in matters of payment of
wages or salary.
10. This Court in the case of Delhi Veterinary Assn. v.
Union of India2 said that in addition to the principle of
“equal pay for equal work”, the pay structure of the
employees of the Government should reflect many other social
values. It was said :
“The degree of skill, strain of work,
experience involved, training required,
responsibility undertaken, mental and physical
requirements, disagreeableness of the task,
hazard attendant on work and fatigue involved
are, according to the Third Pay Commission,
some of the relevant factors which should be
taken into consideration in fixing pay scales.
The method of recruitment, the level at which
the initial recruitment is made in the
hierarchy of service or cadre, minimum
educational and technical qualifications
prescribed for the post, the nature of
dealings with the public, avenues of promotion
available and horizontal and vertical
relativity with other jobs in the same service
or outside are also relevant factors.”
In the case of State of U.P. v. J.P. Chaurasia3 it was
pointed out that whether two posts are equal or should carry
the equal pay, depends on several factors. It does not
depend just upon either the nature of work or the volume of
work done. Primarily it requires among others, evaluation
of duties and responsibilities of the respective posts. The
quantity of work may be the same but the quality may be
different. That cannot be determined by relying upon
averments in affidavits of interested parties. It must be
determined by expert bodies like Pay Commission, who would
be the best judges, to evaluate the nature of duty,
responsibility and all relevant factors. The same view was
reiterated in the case of State of M.P. v. Pramod Bhartiya4
by a three-Judge Bench of this Court. Recently, in the case
of
2 (1984) 3 SCC 1: 1984 SCC(L & S) 329: AIR 1984 SC 1221
3 (1989) 1 SCC 121: 1989 SCC (L & S) 71: (1988) 8 ATC 929:
AIR 1989 SC 19
4 (1993) 1 SCC 539: 1993 SCC (L & S) 221: (1993) 23 ATC 657
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Shyam Babu Verma v. Union of India5 a claim for equal pay by
a group of Pharmacists was rejected saying that the
classification made by a body of experts after full study
and analysis of the work, should not be disturbed except for
strong reasons which indicate that the classification made
was unreasonable.
11. It need not be impressed that the principle of “equal
pay for equal work” can be enforced only after the persons
claiming satisfy the court that not only the nature of work
is identical but in all other respects they belong to the
same class and there is no apparent reason to treat equals
as unequals. Unless a very clear case is made out and the
court is satisfied that the scale provided to a group of
persons on the basis of the material produced before it
amounts to discrimination without there being any
justification, the court should not take upon itself the
responsibility of fixation of scales of pay, especially when
the different scales of pay have been fixed by Pay
Commission or Pay Revision Committees, having persons as
members who can be held to be experts in the field and after
examining all the relevant material. It need not be
emphasised that in the process undertaken by the court, an
anomaly in different services may be introduced, of which
the court may not be conscious, in the absence of all the
relevant materials being before it. Till the claimants
satisfy on material produced, that they have not been
treated as equals within the parameters of Article 14,
courts should be reluctant to issue any writ or direction to
treat them equal, particularly when a body of experts has
found them not to be equal.
12. So far as the present case is concerned, as already
mentioned above, the High Court placed reliance on an
earlier judgment of the same court directing that Agragamies
of West Bengal Civil Emergency Force be paid the same scale
of pay, which was payable to the Firemen of the Fire Service
Department. That earlier judgment of the High Court has
been reversed by this Court (State of W.B. v. Madan Mohan
Sen6). This Court while dismissing the writ application of
Agragamies of West Bengal Civil Emergency Force has pointed
out that merely because the academic qualifications and
physical requirements of both are similar or that the
Agragamies are also given certain fire-fighting training
along with other training, it cannot be said that they
perform similar duties, functions and responsibilities as
the Firemen.
13. The same is the position here. On the material on
record, it is difficult to hold that the respondents who had
been enrolled as volunteers under the West Bengal National
Volunteer Force Act, belong to the class of Constables,
under the West Bengal Police Force and to treat them
separately in matters of fixation of scale of pay, amounts
to violating Article 14 of the Constitution. According to
us, they form two different classes in public service. In
this background, the High Court was in error in treating
them on a par with the Constables of the West Bengal State
Police Force.
5 ((1994) 2 SCC 52 1: JT (1994) 1 SC 574
6 1993 Supp (3) SCC 243: 1993 SCC (L & S) 1063: (1993) 25
ATC 586
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