Full Judgment Text
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PETITIONER:
UNION OF INDIA AND OTHERS
Vs.
RESPONDENT:
PRADIP KUMAR DEY
DATE OF JUDGMENT: 09/11/2000
BENCH:
Shivaraj V. Patil
JUDGMENT:
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J U D G M E N T
Shivaraj V. Patil
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
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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 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
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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.
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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 reads: 18. The first question
regarding entitlement to 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
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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
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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.