PETITIONER: UNION OF INDIA AND OTHERS Vs. RESPONDENT: PRADIP KUMAR DEY DATE OF JUDGMENT: 09/11/2000 BENCH: Doraiswamy Raju & Shivaraj V. Patil. JUDGMENT:
Shivaraj V. Patil
L…I…T…….T…….T…….T…….T…….T…….T..J
This appeal is filed assailing the judgment and order
dated 23.12.1992, passed by the High Court of Calcutta in
Civil Appeal No. 659 of 1989.
The respondent herein filed a writ petition seeking a
writ of mandamus directing the appellants to proceed on the
basis of the recommendations presented to the Fourth Pay
Commission by Central Reserve Police Force (CRPF) in order
to remove disparity in the pay scales of Naik (Radio
Operator) and an employee discharging similar nature of
duties in Directorate of Coordination Police Wireless and
other Central Government agencies on the ground that the
duties performed by the respondent as Naik (Radio Operator)
were more hazardous than the duties performed by personnel
with similar qualifications and experience in State services
and other organizations. The respondent made his claim on
the principle of equal pay for equal work. The appellants
contested the writ petition by filing a detailed counter
contending that the recommendations of the Fourth Pay
Commission had been implemented by the CRPF in all respects
and that the respondent was not discriminated; the Fourth
Pay Commission had gone deep into various aspects of the pay
structure of various categories of the employees of the
Central Government and the claim of the respondent on the
principle of equal pay for equal work was not tenable
having regard to various distinguishable factors.
The learned single Judge by his order dated 28.9.1989
dismissed the writ petition stating that the respondent was
appointed as a constable and was promoted as Naik and he
could not equate himself with the pay scale of Assistant
Sub-Inspector of Police; the Pay Commission Report shows
that all Naiks of all Central police establishments
including CRPF have been given the same pay scale. The
respondent took up the matter in appeal before the Division
Bench of the High Court in C.A. No. 659 of 1989. The said
appeal was allowed directing the appellants to fix up the
pay of the respondent at Rs.1320-2040 and to revise the same
if the same pay scale has since been revised in order to
remove the disparity. Hence this appeal.
The learned senior counsel for the appellants urged (1)
Fourth Pay Commission recommendation had been implemented in
letter and spirit and the respondent was not at all
discriminated; (2) the job of radio operator in CRPF could
not be compared with the other civil radio operators of
other departments; the Fourth Pay Commission, having gone
deep into the various aspects of the pay structure of
various categories of the employees of the Central
Government, had made the recommendation; (3) even to apply
the principle of equal pay for equal work details and
particulars relating to comparable employees were not made
available so as to give direction as is done in the impugned
judgment; (4) apart from the difference in pay scales the
Radio Operators in CRPF have various other facilities, which
are not available to the other Radio Operators in civil
departments and other Central Government agencies; and (5)
the respondent being in the rank of Naik in fact is claiming
the benefits and pay scale available to the promotional post
of Assistant Sub- Inspector of Police; the direction given
in the impugned judgment leads to grant of pay scale of the
Assistant Sub-Inspector of Police to the respondent, who is
in the rank of Naik only; there was no material from which
definite conclusion regarding essential qualification,
method of recruitment and other relevant factors for
comparison between the different organizations to apply the
principle of equal pay for equal work.
The learned senior counsel for the respondent made
submissions supporting the impugned judgment. He urged that
the appellants themselves having made recommendations for
grant of pay scale, which supported the claim of the
respondent, could not go back; the appellants could not
take conflicting positions — one before the Pay Commission
and the other before the court. According to the learned
counsel when all the facts are stated in the recommendations
submitted to the Pay Commission as to the nature of the
duties and other relevant factors, nothing more was required
to be done in order to grant pay scale as demanded by the
respondent; in this view no fault can be found with the
judgment under appeal.
We have carefully considered the submissions made by the
learned counsel for the parties. The learned single Judge@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
noticed that (1) the respondent was originally appointed as
a Constable and had been promoted to the rank of Naik; he
was given the necessary training departmentally and had been
appointed as Naik (Radio Operator); his substantive post is
that of Naik and his promotional post is that of Assistant
Sub-Inspector of Police; the post of Naik is junior to that
of Assistant Sub- Inspector of Police; as such respondent
could not claim the pay scale of Assistant Sub-Inspector of
Police, which is his promotional post. (2) There was no
material before the court to come to a definite conclusion
as to what are the essential qualifications and method of
recruitment for the post of Radio Operator in Central Water
Commission or Directorate of Police Wireless; the
respondent being Naik working as a Radio Operator, is
getting a special pay of Rs.80/- per month; there was
nothing on record to show that the Radio Operator of the
Central Water Commission and the Directorate of Police
Wireless belong to the same rank of Naik of the CRPF. (3)
It is clear from the Pay Commission Report that all Naiks of
central police establishments including CRPF have been given
the same scale of pay; therefore for the Naik Radio
Operator there cannot be different scale of pay. In this
view the writ petition was dismissed.
The Division Bench of the High Court allowed the appeal
filed by the respondent stating that admittedly the
respondent was performing technical duties and was
performing more hazardous job; the Radio Operators in CRPF
were not only performing similar nature of duties as that of
Radio Operators of Central Water Commission or the
Directorate of Police Wireless but they were also performing
more hazardous duties. The appellants appreciating the
nature of work made recommendations before the Pay
Commission for higher pay scale but after the Pay Commission
turned down the same, they have come forward with a
different stand; the appellants cannot take conflicting
stands one before the Pay Commission and the other before
the court. The Pay Commission recommendations were not
binding on the Government. They ought to have taken a
decision on merits. On this basis the Division Bench gave
directions as already stated above.
In our considered view, the Division Bench of the High
Court was not right and justified in straight away giving
direction to grant pay scale to the respondent when there
was no material placed before the court for comparison in
order to apply the principle of equal pay for equal work
between the Radio Operators of CRPF and the Radio Operators
working in civil side in Central Water Commission and
Directorate of Police Wireless. In the absence of material
relating to other comparable employees as to the
qualifications, method of recruitment, degree of skill,
experience involved in performance of job, training
required, responsibilities undertaken and other facilities
in addition to pay scales, the learned single Judge was
right when he stated in the order that in absence of such
material it was not possible to grant relief to the
respondent. No doubt, the Directorate of CRPF made
recommendations to the Pay Commission for giving higher pay
scales on the basis of which claim is made by the respondent
for grant of pay scale. The factual statements contained in
the recommendation of a particular department alone cannot
be considered per se proof of such things or they cannot by
themselves vouch for the correctness of the same. The said
recommendation could not be taken as a recommendation made
by the Government. Even otherwise mere recommendation did
not confer any right on the respondent to make such a claim
for writ of mandamus.
The learned counsel for the respondent strongly relied
on the judgment of this Court in Randhir Singh vs. Union of
India and others and added that this decision has been
followed in various subsequent decisions of this Court.
According to him when the appellants have supported the
claim of the respondent before the Pay Commission having
regard to the nature of his duties, the Division Bench of
the High Court was right in granting relief to him. There
is no difficulty in accepting the principle stated in the
said decision and which, in fact, has been reiterated in
subsequent decisions of this Court. But as stated in the
said decision the principle of equal pay for equal work is
not an abstract doctrine but one of substance. In para 8 of
the said judgment it is stated thus: –
Construing Articles 14 and 16 in the light of the
Preamble and Article 39(d), we are of the view that the
principle equal pay for equal work is deducible from those
Articles and may be properly applied to cases of unequal
scales of pay based on no classification or irrational
classification though those drawing the different scales of
pay do identical work under the same employer.
(emphasis supplied)
Few decisions were cited by the learned counsel for the
appellants in support of his submissions that the courts may
not interfere in the matter of fixation of pay scales when
the Government fixes or grants pay scales on the basis of
various factors including the Pay Commission recommendations
that too in the absence of relevant details and particulars
of comparable employees. This Court in S.L. Ahmed and
others vs. Union of India and others has held thus: – 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 Government has prescribed a particular
pay scale in respect of them, all that the court can do is
to merely pronounce on the validity of the fixation. In the
event that the court finds that the prescription is contrary
to law it will strike it down and direct the Government to
take a fresh decision in the matter. It is a 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.
(emphasis supplied) Para 18 of the judgment of this Court in
State of U.P. and others vs. J.P. Chaurasia and others@@
JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ
reads: 18. The first question regarding entitlement to@@
JJJJJJ
the pay scale admissible to Section Officers should not
detain us longer. The answer to the question depends upon
several factors. It does not just depend upon either the
nature of work or volume of work done by Bench Secretaries.
Primarily it requires among others, evaluation of duties and
responsibilities of the respective posts. More often
functions of two posts may appear to be the same or similar,
but there may be difference in degrees in the performance.
The quantity of work may be the same, but quality may be
different that cannot be determined by relying upon
averments in affidavits of interested parties. The equation
of posts of equation of pay must be left to the Executive
Government. It must be determined by expert bodies like Pay
Commission. They would be the best judge to evaluate the
nature of duties and responsibilities of posts. If there is
any such determination by a Commission or Committee, the
court should normally accept it. The court should not try
to tinker with such equivalence unless it is shown that it
was made with extraneous consideration. (emphasis supplied)
Yet, again this Court, having referred to its earlier
decisions including of Randhir Sungh and J.P. Chaurasia
aforementioned, in para 5 of its judgment in State of
Haryana and others vs. Jasmer Singh and others has stated
thus: – 5. The principle of equal pay for equal work is
not always easy to apply. There are inherent difficulties
in comparing and evaluating work done by different persons
in different organizations, or even in the same
organization. The principle was originally enunciated as a
part of the Directive Principles of State Policy in Article
39(d) of the Constitution. In the case of Randhir Singh v.
Union of India, however, this Court said that this was a
constitutional goal capable of being achieved through
constitutional remedies and held that the principle had to
be read into Articles 14 and 16 of the Constitution. In
that case a Driver-constable in the Delhi Police Force under
the Delhi Administration claimed equal salary as other
Drivers and this prayer was granted. The same principle was
subsequently followed for the purpose of granting relief in
Dhirendra Chamoli v. State of U.P. [(1986) 1 SCC 637] and
Jaipal v. State of Haryana [(1988) 3 SCC 354]. In the case
of Federation of All India Customs and Central Excise
Stenographers (Recognised) v. Union of India [(1988) 3 SCC
91], however, this Court explained the principle of equal
pay for equal work by holding that differentiation in pay
scales among government servants holding same posts and
performing similar work on the basis of difference in the
degree of responsibility, reliability and confidentiality
would be a valid differentiation. In that case different
pay scales fixed for Stenographers (Grade I) working in the
Central Secretariat and those attached to the heads of
subordinate offices on the basis of a recommendation of the
Pay Commission was held as not violating Article 14 and as
not being contrary to the principle of equal pay for equal
work. This Court also said that the judgment of
administrative authorities concerning the responsibilities
which attach to the post, and the degree of reliability
expected of an incumbent, would be a value judgment of the
authorities concerned which, if arrived at bona fide,
reasonably and rationally, was not open to interference by
the court. (emphasis supplied) In Union of India and
another vs. P.V. Hariharan and another this Court
observed, It is the function of the Government 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 realize 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. In this background as to
the position of law touching the controversy raised in this
appeal, we have no hesitation in holding that the impugned
judgment and order are unsustainable. The learned counsel
for the appellants placed before us a chart showing
difference in pay scales, facilities, other allowances,
leave period, providing accommodation, etc. for the purpose
of comparison between the pay 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 re-orientation 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 chain-reaction, may require
further consideration afresh by expert body like the Pay
Commission or the Government itself at an appropriate time
in an appropriate manner. Courts should normally leave such
matters for the wisdom of administration except the proven
cases of hostile discrimination. But in the case on hand,
having regard to the facts and circumstances of the case and
the position of law stated above, the Division Bench of the
High Court was not right in granting the relief itself,
straightaway to the respondent; that too, without examining
the implications and impact of giving such directions on
other cadres. However, we make it clear that the rejection
of the claim of the respondent need not be taken as an issue
closed once and for all. It is always open to the
Government to consider the issue either by making reference
to the Pay Commission or itself once again as to the grant
of pay-scales to the respondent. It is open to the
respondent to make further and detailed representation.
In the result, for the reasons stated above, this appeal
is entitled to succeed. Accordingly, it is allowed. The
judgment and order under appeal are set aside and the
judgment of the learned Single Judge is restored.
No costs.
