Union of India & Ors Vs. Pradip Kumar
Dey [2000] INSC 548 (9 November 2000)
Shivaraj
V. Patil
L.I.T.J
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 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 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 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
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.
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