State of
West Bengal & Ors Vs. Madan Mohan Sen &
Ors [1993] INSC 56 (3
February 1993)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Reddy, K. Jayachandra (J)
CITATION:
1993 SCR (1) 397 1993 SCC Supl. (3) 243 JT 1993 (4) 48 1993 SCALE (1)413
ACT:
Constitution
of India, 1950-Articles 14 and 16-Agragami
of West Bengal Civil Emergency Force and Fireman and leaders of West Bengal
Fire Service-Whether situated similarly-Equal pay on equal work, whether
applicable.
Civil
Service-West Bengal Civil Emergency Force-Post of Agragami-Claim for higher pay
scale at par with the Fireman and Leaders in the West Bengal Fire
Service-Legality of -Equal pay for equal work-Application of.
HEAD NOTE:
The
respondents in this Civil Appeal were working as Agragamies. They riled Writ
Petitions before the High Court, claiming that, since they were similarly
placed to the Firemen and Leaders in the West Bengal Fire Service, they must be
given the same pay scale as was admissible to the said Firemen and Leaders. The
State Government denied the claim on the ground that the duties and functions
performed by the respondents and the Firemen and leaders were totally different
and distinct.
The
Writ Petition was allowed by a Single Judge. The Government preferred an appeal
before the Division Bench of the High Court The Division Bench, on a comparison
of the academic qualifications and physical requirements found that the Agragamies
were in no way differently situated from the Firemen/Leaders in the West Bengal
Fire Service and that the Agragamies performed more onerous duties and thus
their claim for higher pay Scale was perfectly just and proper.
Affirming
the decision of the Learned Single Judge, the Division Bench dismissed the Writ
Appeal.
The
State filed the present Appeal by Special Leave challenging the Judgment of the
Division Bench of the High Court, contending that the Agragmies and
Firemen/Leaders in The Fire Service Department of West Bengal were not
similarly situated in the matter of recruitment, conditions of service and duties
and responsibilities discharged, that the Fire-fighting 398 training given to
the Agragamies was in no way similar to the one Imparted to Firemen/Leaders.
That the Services of Agragamies were indented upon by the Fire Services
Department only in times of emergency or acute need and as such they could not
be equalled with other categories In these departments that the Pay Commission
had prescribed a lower pay Scale for the Agragamies which was neither
discriminatory nor it amounted to treating equals unequally.
Respondents
submitted that in fact Agragamies performed more onerous duties than
firemen/leaders and they do not lag behind in the matter of academic
qualification or physical requirements for recruitment, that having regard to
the nature of duties and responsibilities performed by them the Agragamies were
justly entitled to the higher scale granted to them by the High Court.
Allowing
the appeal, this court,
HELD :
1.01. It would be evident from a comparison of the nature of duties, responsibilities
and functions of the Agragamies and Firemen/Leaders of Fire Service Department
that they are neither same or similar. The firemen and leaders are the members
of the Fire Service Department whereas the Agragamies are members of West
Bengal Civil Emergency Force meant as an auxiliary force to assist the various
Government departments and agencies in times of emergency and acute need. No
doubt they are also members of a Government Service and they too have to report
to their office and be available for such duties as they may be called upon to
perform, but it would not be correct to say that they perform the same or
similar duties as that of Firemen or Leaders of the Fire Service Department. [403G-H,
404A] 1.02. There is bound to be a difference in the quality of Fire righting
job of both of them. Firemen and leaders are a specialised fire righting force
while the Agragamies are, so to speak 'jacks of all trades' having been given
elementary training in various fields. When called upon to assist, Agragamies
assist fire fighting personnel including firemen and leaders just as they
assist personnel of other department. It is idle to contend that they perform
the same duties and functions as firemen/leaders. 1404B-C] 1.03. Merely because
the academic qualification and physical requirement of both are similar or that
the Agragamies are also given a 399 certain fire-fighting training alongwith
other training, it cannot be said that they perform similar duties, functions
and responsibilities as the firemen/leaders. [404E] 1.04. The respondents have
failed to establish the crucial facts entitling them to the higher pay-scale.
They have also failed to prove that they are discriminated in any manner in the
matter of pay. [404F]
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 405 of 1993.
From
the Judgment and Order dated 21.11.90 of the Calcutta High Court in F.M.A.T.
No. 1841 of 1986.
G. Ramaswamy,
Santosh Hegde, D.K. Sinha and J.R. Das for the Appellants.
S.K. Bandhopadhyay
and Somnath Mukherjee for the respondents.
The
Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Heard the counsel
for the parties.
Leave
granted.
The
appeal is directed against the judgment of the Division Bench of Calcutta High
Court affirming the judgment of the learned Single Judge declaring that 'Agragamies'
in West Bengal Civil Emergency Force are entitled to be placed in the scale of Rs.
280-617 on par with the Fireman in the West Bengal Fire Service. Agragamies
were in the scale of Rs. 230-414. The said pay scales have since been revised
to Rs. 980-1756 and Rs. 830-1357 respectively. The relief has been granted
applying the doctrine of equal pay for equal work.
The
recruitment and conditions of service of the West Bengal Civil Emergency Force
(W.B.C.E.F.) are governed by West Bengal Subordinate Services and Subordinate
Other Services (Recruitment of Employees of the West Bengal Civil Emergency
Force) Rules, 1975. It consists of several categories including Agragamies. The
posts of Agragamies are to be filled by direct recruitment, preference being
given to trained West Bengal National Volunteers Force Personnel or ex-service
personnel. The educational qualification prescribed is upto Class VI standard.
Certain physical 400 standards are also prescribed besides the age requirement.
According
to the supplementary affidavit filed on behalf of the Government of West Bengal
in this court, there are no prescribed duties and responsibilities for Agragamies.
They are meant as primary units of the Civil Emergency Force of the State Government.
Their services are generally requisitioned for assisting the various State
Agencies in emergency situations. Their assistance is taken by police personnel
in maintenance of law and order and at the time of elections. Other authorities
too take their assistance in the case of natural calamities like flood and
storms. They are also indented upon by fire-fighting personnel in case of major
fire and other natural calamities. Under normal conditions, Agragamies are
confined to their respective camps and asked to perform the duties of santries.
According
to the letter dated 22.3.1984 written by the Commandant, W.B.C.E.F., Howrah to the Deputy Secretary to the
Government of West Bengal and Ex-Officio Joint Director of Civil Defence, the
duties performed by the Agragamies are manifold. Their assistance is taken even
during the international tournaments, visits of V.I.Ps. and foreign
dignitaries, in loading and unloading of essential commodities during
emergency, garbage clearance, pump opera- tion during flood and drought, fire
fighting, first-aid duty, Inoculation and vaccination and so on and so forth.
In
March 1984, their total strength is stated to be 558.
The
above material establishes that this force does not have any prescribed duties
and that they are employed as auxiliary cadres by several departments of the
Government in case of emergency and acute need. For this purpose, it appears,
the Agragamies are made to undergo several types of training viz., West Bengal
National Volunteers Force training, fire-fighting training, special board
training, electrical training, wireless training and training in driving the
vehicles. As stated above, they were placed in the scale of Rs. 230-414 (since
revised to Rs. 830-1357).
It
also appears that as and when vacancies in the cadre of firemen and leaders in
the West Bengal Fire Service and other categories in other departments arise. Agragamies
are absorbed therein subject to their eligibility and suitability.
The Agragamies,
hereinafter referred to as "respondents", filed a writ petition in
the Calcutta High Court being C.R. No. 15583(W) of 1981 seeking a higher pay
scale which writ petition was disposed of on August 17, 1982 by a learned Single Judge. The learned Single Judge
directed the respondents (writ petitioners therein) to make a representation to
the State 401 Government giving the particulars of their training and nature of
work. The State Government was directed to consider the said representation
within four months in accordance with law. The respondents accordingly made a
representation but no decision was taken by the State Government within four
months. They again approached the High Court with another writ petition being
C.R. No. 6755 (W) of 1983. Their case was that since in the matter of educational
qualifications, mode of recruitment, conditions of service and duties and
responsibilities they are similarly placed to firemen and leaders in the West
Bengal Fire Service, they must be given the same pay scale as is admissible to
the said firemen and leaders, namely the scale of Rs. 280-617 (since revised to
Rs. 980-1756). This was opposed by the State Government. According to the
government, the various pay scales recommended by the Pay Commission, an expert
body, had been accepted by the government, and hence there is no room for
complaining of any discrimination. They submitted that the duties, functions
and responsibilities performed by the respondents on one hand and the firemen
and leaders in the Fire Service Departments on the other are totally different
and distinct and that there can be no comparison between both the categories.
The
writ petition was allowed by a learned Single Judge by his judgment and order
dated 19th May, 1986. The learned Single Judge directed
the State Government extend the scale of Rs. 280-617 to the respondents with
effect from April 1,
1981 together with
arrears payable within twelve weeks from the date of communication of the said
order to the State Government. The Government of West Bengal preferred an
appeal against the judgment of the learned Single Judge.
The
Division Bench found, on a comparison of the academic qualifications and
physical requirements that the Agragamies are in no way differently situated
from the firemen/leaders in the West Bengal Fire Service and that indeed Agragamies
performed more onerous duties and that, therefore, their claim for the said
higher pay scale were perfectly just and proper. The Division Bench expressed
the following opinion finally :
"It,
however, appears to us that Firemen and the leaders being associated with the
Fire Services are to render primarily fire fighting duties and therefore the
nature of duties and functions performed by them cannot be strictly the same
duties and functions as performed by 402 Agragamies but the fact remains that
the Agragamies are also to render services are also requisitioned for fighting
the fire besides and it cannot be contended that they are not discharging
similar duties and functions in fighting the fire. It also appears to us that
as a matter of fact, they are discharging duties and functions which may be
more onerous than the duties and functions being performed by the Firemen of
the West Bengal Fire Services." Accordingly, the decision of the learned
Single Judge was affirmed and the writ appeal dismissed.
In
this appeal, it is submitted by Sri G. Ramaswamy, learned counsel for the State
of West Bengal that the Agragamies and
firemen/leaders in the Fire Service Department of West Bengal are not similarly
situated whether in the matter of recruitment, conditions of service or duties
and responsibilities discharged. Counsel pointed out that Agragamies are
eligible for being absorbed in the category of firemen/leaders in case of
vacancies subject to their eligibility and suitability which shows that they
are inferior to firemen/leaders' category. May be that Agragamies are given
various types of training so as to enable them to assist the various State
Agencies, one of them being fire-fighting training but the said training is in
no way similar to the one imparted to firemen/leaders.
It is
submitted that the Pay Commission which is an expert body has prescribed a
different but lower scale for Agragamies than the firemen/leaders and it cannot
be said that the scale so prescribed is either discriminatory or that it
amounts to treating equals unequally. Only in times of emergency or acute need,
services of Agragamies are indented upon by Fire Service Department also just
like any other department of the State. For that reason, they cannot be equated
with one or the other category in those departments, it is submitted. Strong
reliance is placed upon a recent decision of this court in State of Madhya
Pradesh v. Pramod Bhartiya, (1992) 5 J.T.653 to which one of us (B.P. Jeevan
Reddy, J.) was a party.
On the
other hand, the learned counsel for the respondents sought to sustain and
justify the decision of the learned Single Judge as well as the Division Bench
of the Calcutta High Court. He submitted that in fact Agragamies performed more
onerous duties than firemen/leaders and they do not lag behind in the matter
of, academic qualification or physical 403 requirements for recruitment. It is
submitted that having regard to the nature of the duties and responsibilities
performed by them the Agragamies are justly entitled to the higher scale
granted to them by the High Court.
In Pramod
Bhartiya, it was held, after a review of several earlier judgments of this
court that what is really material is whether two categories performed similar
functions and discharged similar duties and responsibilities and not whether
their qualifications And/or service conditions are similar. The definition of
the expression 'same work or work of similar nature" contained in clause
(h) of Section 2 of Equal Remuneration Act, 1956 was relied upon as providing a
guidance in the matter of determination whether the duties, functions and
responsibilities of two categories can be said to be same or similar. It was
also emphasised that the quality of work may vary from post to post and institution
to institution and that a realistic view should be taken in such matters. Let
us examine the facts of this case from the aforesaid point of view. We have
already set out the duties and functions of Agragamies. Now let us examine the
duties and functions performed by firemen/leaders in the Fire Service
Department of the West Bengal Service. They are set out in Annexure 'D' to the
supplementary affidavit filed by the Government of West Bengal in this matter.
These duties include the duty at the fire station, to keep the fire station
premises including appliances, rooms, offices, workshops etc. clean and tidy,
to keep himself in readiness to attend to fire and other emergency at shortest
possible time, to keep himself acquainted with the topography of his own and
adjoining areas as well as fire risk in such areas, to carry out proper
maintenance and handling of equipment and other implements, to inspect the fire
appliances and to keep them in a workable condition, perform parade and drills
as per schedule routine and to attend all kinds of demonstration and training,
to perform guard/santry duty at the fire station and so on. They have to
perform both night duty and day duty as may be assigned to them and even on
Sundays in their turn.
It
would be evident from a comparison of the nature of duties, responsibilities
and functions of the Agragamies and firemen/leaders of fire Service Department
that they are neither same nor similar. The firemen and leaders are the members
of the Fire Service Department whereas the Agragamies are members of West
Bengal Civil Emergency Force meant as an auxiliary force to assist the various
government departments and agen- 404 cies in times of emergency and acute need.
No doubt they are also members of a government service and they too have to
report to their office and be available for such duties as they may be called
upon to perform. But it would not be correct to say that they perform the same
or similar duties as that of firemen or leaders of the Fire Service Department.
There is bound to be a difference in the quality of fire-fighting job of both
of them. Firemen and leaders are a specialised fire-fighting force while the Agragamies
are, so to speak 'jacks of all trades' having been given elementary training in
various fields. When called upon to assist, Agragamies assist fire-fighting
personnel including firemen and leaders just as they assist personnel of other
departments. It is idle to contend that they perform the same duties and
functions as firemen/leaders. They assist not only the Fire Service Department
but police department, Municipal Authorities, Medical and Health Authorities,
Social Service Department and so on and so forth. It is not clear as to why the
respondents have picked upon the particular category of firemen/leaders of Fire
Service Department to claim a particular higher pay scale. It is not as if they
are attached to Fire Service Department. As stated rightly by the learned
counsel for the State, the Agragamies are eligible for absorption as firemen/leaders
in the Fire Service Department, in the case of vacancies being available,
subject to eligibility and suitability. They are governed by different service
conditions and merely because the academic qualifications and physical
requirements of both are similar or that the Agragamies are also given a
certain firefighting training along with other training, it cannot be said that
they perform similar duties, functions and responsibilities as the
firemen/leaders. The respondents have failed to establish the crucial facts
entitling them to the higher pay-scale. They have also failed to prove that
they are discriminated in any manner in the matter of pay.
For
the above reasons, the appeal is allowed and the judgment of the learned Single
Judge of the Calcutta High Court and the judgment of the Division Bench
affirming it are set aside. There shall be no order as to costs.
This
order does not preclude the Government of West Bengal from extending a higher
pay scale to the respondent's category if it is found warranted.
B.V.B.D.
Appeal allowed.
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