State of
W.B. Vs. Hari Narayan Bhowal [1994] INSC
177 (16 March 1994)
Singh
N.P. (J) Singh N.P. (J) Sawant, P.B.
CITATION:
1994 SCC (4) 78 JT 1994 (2) 610 1994 SCALE (2)263
ACT:
HEAD NOTE:
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) 81 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.
82 (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".
83
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 84 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.
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