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CASE NO.: Appeal (civil)  25 of 2008

PETITIONER: UNION OF INDIA & ORS.

RESPONDENT: DINESHAN K.K.

DATE OF JUDGMENT: 04/01/2008

BENCH: C.K. THAKKER & D.K. JAIN

JUDGMENT: J U D G M E N T

[Arising out of S.L.P. (C) No. 21222 of 2005)

D.K. JAIN, J.:

       Delay condoned.   2.              Leave granted. 3.              This appeal by the Union of India and the Director  General of Assam Rifles arises out of the judgment and order  dated 11th February, 2005 rendered by the Gauhati High  Court in WP (C) No.497 of 2001.  By the impugned order, while  allowing the writ petition, directions have been issued that the  permission granted by the Union of India vide its letter dated  3rd March, 1998, to re-designate the rank of Havildar (Radio  Mechanic) as Warrant Officer as recommended by the Ministry  of Home Affairs shall be carried out and the pay scale as  admissible to their counterparts in the Central Reserve Police  Force (CRPF) and the Border Security Force (BSF) shall be  granted from the same date.   4.      The nub of the grievance of the writ petitioner, working in  the rank of a Radio Mechanic in the Assam Rifles was that the  Ministry of Home Affairs and the Director General of Assam  Rifles having accepted in principle that the members of the  Assam Rifles, should be given the same rank and pay  structure as was given to other central paramilitary forces, yet  the same had been denied to them.  It was pleaded that as the  Ministry of Home Affairs had conveyed its decision to  rationalize the rank structure of non gazetted personnel of  central paramilitary forces vide order dated 26th January,  1998, equal pay structure in other ranks, including the Radio  Mechanics in the Assam Rifles could not be denied.  His  further grievance was that after the implementation of the  Fourth Pay Commission, the pay of the Havildar/GD and Head  Constable/Radio Mechanic was fixed in the pay scale of  Rs.975-1660, without any discrimination between the general  duty and technical categories but the discrimination surfaced  when higher pay scale of Rs.1200-2040 was given to the Radio  Mechanics working in the BSF, denying the same pay scale to  the Radio Mechanics in the Assam Rifles.  It was also pointed  out that the Radio Mechanics working in the Delhi Police  organization had been given a much higher pay scale on 10th  October, 1997 which was being denied to the similar rank  holders in the Assam Rifles. 5.      The writ petition was contested by the Union of India.  In  the counter affidavit filed on its behalf, it was stated that on  the recommendation of the Fourth Pay Commission, with  effect from 1st January, 1986, the Assam Rifles personnel had

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been granted revised pay scales and allowances entirely on the  lines of other central paramilitary forces.  However, as the  changes in the rank structure were not carried out in the  Assam Rifles like in other central paramilitary forces, an  \021apparent disparity\022 in the service conditions of certain  category of personnel including the rank of Radio Mechanic  had arisen.  It was also pointed out that the Assam Rifles  Directorate had brought this disparity to the notice of the  Ministry of Home Affairs in February, 1998, and had  recommended the re-designation of Radio Mechanic and Head  Constable in Assam Rifles as Warrant Officer and for  replacement of pay scale of Rs.4000-6000 to bring them at par  with their counterparts in other central police organizations. It  was stated that in response to the said recommendation, the  Ministry of Home Affairs vide letter dated 3rd March, 1998, had  informed the Assam Rifles that they could re-designate the  Head Constable (Radio Mechanic) as Warrant Officer provided  their pre-revised and revised pay scales were identical to the  pay scales of their counterparts in CRPF and BSF.  However,  the re-designation of the ranks could not be carried out in the  light of the said communication as there was \021disparity\022  between the pay scales of a Radio Mechanic in Assam Rifles  and their counterparts in CRPF and BSF.  It was conceded  that though the academic qualification for recruitment to the  post of Radio Mechanic in Assam Rifles as well as in CRPF and  BSF was the same yet there was \021disparity\022 in the revised pay  scales between the Assam Rifles and the said two other  paramilitary forces.  The claim of the petitioner for higher pay  scales on the lines of the pay scales of Delhi Police  organization was seriously contested on the ground that the  Assam Rifles being a central police organisation, it could not  claim parity with Delhi Police organization, which was not a  central paramilitary force. 6.      Taking note of the admission on the part of the Union of  India that there was disparity between the pay scales of the  members of the Assam Rifles and similarly ranked personnel  of other paramilitary forces, the High Court felt that it would  be unreasonable and discriminatory if the pay scales given to  Radio Mechanics in CRPF and BSF were denied to the Radio  Mechanics in Assam Rifles, when the qualifications and  service requirements in all the three organizations were  identical.  Consequently, the High Court issued the aforenoted  directions, which are questioned in this appeal. 7.      Mr. B. Dutta, learned Additional Solicitor General,  appearing for the Union of India contended that the direction  given by the High Court is manifestly contrary to the settled  legal position, enunciated by this Court in several decisions  that pay fixation is essentially an executive function, ordinarily  undertaken by an expert body like the Pay Commission, whose  recommendations are entitled to a great weight though not  binding on the Government.  It was argued that the  recommendations of an expert body are not justiciable since  the Court is not equipped to take upon itself the task of job  evaluation, which is a complex exercise.  In support of the  proposition, reliance is placed on two decisions of this Court in  S.C. Chandra & Ors. Vs. State of Jharkhand & Ors.  and  Union of India & Ors. Vs. Hiranmoy Sen & Ors. . 8.      Mr. Ranjit Kumar, learned senior counsel, appearing on  behalf of the respondent, on the other hand, submitted that  the petitioners having themselves admitted that there was an  anomaly in the pay scales of the personnel of Assam Rifles,  particularly, the Radio Mechanics, as compared to their  counterparts in other paramilitary forces, the High Court was  fully justified in giving the impugned directions.  It was  pointed out that, in fact, the Director General, Assam Rifles,

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who is one of the petitioners in the present appeal, had  himself recommended to the Ministry of Home Affairs that the  \021anomaly\022 in the pay scales of the Radio Mechanics should be  rectified.  Learned counsel submits that it is unfair on the part  of the Director General to take a somersault and oppose the  direction given by the High Court which is in consonance with  his recommendation.  Learned counsel, however, stated that  the respondent was not pressing for parity with the personnel  of the Delhi Police.   9.      The principle of \021equal pay for equal work\022 has been  considered, explained and applied in a catena of decisions of  this Court.  The doctrine of \021equal pay for equal work\022 was  originally propounded as part of the Directive Principles of the  State Policy in Article 39(d) of the Constitution.  In Randhir  Singh Vs. Union of India & Ors. , a bench of three learned  Judges of this Court had observed that principle of equal pay  for equal work is not a mere demagogic slogan but a  constitutional goal, capable of being attained through  constitutional remedies and held that this principle had to be  read under Article 14 and 16 of the Constitution.  This  decision was affirmed by a Constitution Bench of this Court in  D.S. Nakara & Ors. Vs. Union of India .  Thus, having  regard to the constitutional mandate of equality and inhibition  against discrimination in Article 14 and 16, in service  jurisprudence, the doctrine of \021equal pay for equal work\022 has  assumed status of a fundamental right.   10.     Initially, particularly in the early eighties, the said  principle was being applied as an absolute rule but realizing  its cascading effect on other cadres, in subsequent decisions of  this Court, a note of caution was sounded that the principle of  equal pay for equal work had no mathematical application in  every case of similar work.  It has been observed that equation  of posts and equation of pay structure being complex matters  are generally left to the Executive and expert bodies like the  Pay Commission etc.  It has been emphasized that a carefully  evolved pay structure ought not to be ordinarily disturbed by  the Court as it may upset the balance and cause avoidable  ripples in other cadres as well.  (Vide:  Secretary, Finance  Department & Ors. Vs.  West Bengal Registration Service  Association & Ors.  and State of Haryana & Anr. Vs.  Haryana Civil Secretariat Personal Staff Association .   Nevertheless, it will not be correct to lay down as an absolute  rule that merely because determination and granting of pay  scales is the prerogative of the Executive, the Court has no  jurisdiction to examine any pay structure and an aggrieved  employee has no remedy if he is unjustly treated by arbitrary  State action or inaction, except to go on knocking at the doors  of the Executive or the Legislature, as is sought to be  canvassed on behalf of the appellants. Undoubtedly, when  there is no dispute with regard to the qualifications, duties  and responsibilities of the persons holding identical posts or  ranks but they are treated differently merely because they  belong to different departments or the basis for classification  of posts is ex-facie irrational, arbitrary or unjust, it is open to  the Court to intervene. 11.     In State Bank of India & Anr. Vs. M.R. Ganesh Babu  & Ors. , a three-Judge Bench of this Court, dealing with the  same principle, opined that principle of equal pay is dependent  upon the nature of work done.  It cannot be judged by the  mere volume of work; there may be qualitative difference as  regards reliability and responsibility.  The functions may be  the same but the responsibilities do make a difference.  It was  held 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

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value judgment of the authorities concerned which, if arrived  at bona fide, reasonably and rationally, was not open to  interference by the Court. 12.     In State of Haryana & Anr. Vs. Tilak Raj & Ors. , it  has been observed that the principle of \021equal pay for equal  work\022 is not always easy to apply as there are inherent  difficulties in comparing and evaluating the work of different  persons in different organizations or even in the same  organisation.  It has been reiterated that this is a concept  which requires for its applicability, complete and wholesale  identity between a group of employees claiming identical pay  scales and the other group of employees who have already  earned such pay scales.  It has been emphasized that the  problem about equal pay cannot be translated into a  mathematical formula.  13.     Yet again in a recent decision in State of Haryana &  Ors. Vs. Charanjit Singh & Ors. , a Bench of three learned  Judges, while affirming the view taken by this Court in the  cases of State of Haryana & Ors. Vs. Jasmer Singh &  Ors. , Tilak Raj (supra), Orissa University of Agriculture  & Technlogy & Anr. Vs. Manoj K. Mohanty  and  Government of W.B. Vs.  Tarun Roy & Ors.   has reiterated  that the doctrine of equal pay for equal work is not an abstract  doctrine and is capable of being enforced in a court of law.   Inter alia, observing that equal pay must be for equal work of  equal value and that the principle of equal pay for equal work  has no mathematical application in every case, it has been  held that Article 14 permits reasonable classification based on  qualities or characteristics of persons recruited and grouped  together, as against those who are left out.  Of course, the  qualities or characteristics must have a reasonable relation to  the object sought to be achieved.  Enumerating a number of  factors which may not warrant application of the principle of  equal pay for equal work, it has been held that since the said  principle requires consideration of various dimensions of a  given job, normally the applicability of this principle must be  left to be evaluated and determined by an expert body and the  Court should not interfere till it is satisfied that the necessary  material on the basis whereof the claim is made is available on  record with necessary proof and that there is equal work and  equal quality and all other relevant factors are fulfilled.  14.     Tested on the touchstone of the aforenoted broad  guidelines and not cast-iron imperatives, we are of the opinion  that in the present case, on the pleadings and the material  placed on record by the parties in support of their respective  stands, the High Court was justified in issuing the impugned  directions. 15.     Vide order dated 10th October, 1997 passed by the  Ministry of Home Affairs in pursuance of para 7 of the Ministry  of Finance, Department of Expenditure Resolution dated 30th  September, 1997, it was notified that the President was  pleased to rationalize the rank structure and pay scales of non  gazetted cadre of central police organizations and as a result of  this exercise certain ranks were to be merged and the rank  structure was communicated in the order along with the  revised pay scales and replacement pay scales.  Copy of this  order was sent to all the paramilitary forces, including the  Assam Rifles.  On 22nd January, 1998, an office memorandum  was issued by the Government of India, Ministry of Home  Affairs, by way of a clarification. In the said letter, it was  clarified that order dated 10th October, 1997 was equally  applicable to all advertised categories.  In the said letter,  direction with regard to the re-designation of the three posts  including Head Constable (RM) as ASI in central paramilitary  forces along with their replacement pay scales were also

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ordered.  It appears that the disparity in rank and pay in  various central paramilitary forces could not be resolved and  on 24th April, 2001, the Director General Assam Rifles  submitted a report to the Government with regard to the  progress on pay anomaly cases.  Para 4 of the said letter is of  some relevance to the issue at hand and it reads as follows: \023Rank and pay of Technical Cadre Person  RM. Ptmn, Pharma, and Compounder of  AR with the same intake QR for remounts  are given the rank of HAV wherein they  are counterparts in CPOs are given ASI.   The MHA had ordered to submit proposal  in directing cadre to cadre comparison  with BSF where the rank of ASI is  available in other tech and also along  with fin implication.  The proposal  alongwith fin implication has been  submitted to MHA and the case is lying  with MOF for approval.\024

16.     Having failed to receive any positive response from the  Government, one of the Radio Mechanics\022 issued a Notice of  Demand to the Ministry of Home Affairs and Director General  of Assam Rifles, inter alia, praying for giving effect to office  order dated 10th October, 1997 and office memorandum dated  22nd January, 1998.  Vide order dated 26th December, 2001,  the Ministry of Home Affairs informed the Director General of  Assam Rifles that his proposal had been examined in  consultation with Ministry of Finance and it was found that  there was no point for comparison of grades and scales of pay  for such posts across various central paramilitary forces.  It  was stated that the proposed upgradation may disturb  relativities of various trades and grades within the Assam  Rifles and there was no functional justification for upgrading  these posts. It is evident that on rejection of the  recommendation made by the Director General of the Force,  the respondent herein was left with no option but to approach  the High Court for redressal of his grievance. 17.     As noted above, the writ petition was opposed by the  petitioners herein by filing counter affidavit.  For the sake of  ready reference, the relevant portions in some of the  paragraphs of the counter affidavit are extracted below: \023That, with regards to the averments of  the petitioner made in the writ petition in  paragraph 5, I submit that Assam Rifles  personnel were in receipt of pay and  allowances on Army analogy with various  groups in terms of Group \021A\022, \021B\022, \021C\022, \021D\022,  & \021E\022 to conform to their functional  qualitative requirements of these groups  which had varying pay scales.  I submit  that on the recommendation of the fourth  pay commission w.e.f. 01.01.1986 for  Force had been granted and pay and  allowance entirely on the lines of Central  Para Military Forces while no change in  the rank structure was carried out and  this difference in rank structure has  resulted in an apparent disparity in their  service conditions and certain category of  personnel who were placed in the  erstwhile higher groups including radio  mechanics category have also been  deprived of pay scales either at par with  their counterparts in the Army or in the

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Central Police Organisation.\024 \005..  \005..  \005..  \005..  \005..  \005..  \005..  \023That, with regard to the averments of  the petitioner made in the writ petition in  paragraph 8, I beg to reiterate that Assam  Rifles personnel were in receipt of pay  and allowances on Army analogy with  various groups in terms of group \021B\022, \021C\022,  \021D\022, and \021E\022, to conform to their functional  and qualitative requirements of these  groups which had varying pay scales in  diminishing order. On the  recommendation of the Fourth Pay  Commission w.e.f. 1st January, 1986 the  Force had been granted pay and  allowances entirely on the lines of Central  Para Military forces shortly called as  CPMFs while no change in the rank  structure was carried out, and this  difference in the rank structure has  resulted in an apparent disparity in their  service condition.\024 \005..  \005..  \005..  \005..  \005..  \005..  \005..  \023That, with regards to the averments of  the petitioner made in the writ petition in  paragraphs 10 to 13, I beg to submit that  on receipt of MHA letter  No.27011/1103/97-PF.1/56 dated 22nd  January, 1998, Assam Rifles Directorate  by letter No.A/Pers/5th CPC/Vol.III/98  dated 18th February, 1998 had taken up  a case with HA to redesignate Hav/RM- Gde I & II of Assam Rifles as Warrant  Officer and for replacement of pay scale  of Rs.4000-1000-6000/- to bring them at  par with their counterparts in other  Central Police Organisation.  I submit  that attention of MHA was also drawn  regarding placement of Hav/RM Gde \026 I  and II in the lower scale of pay  consequent to implementation of IV Pay  Commission.  In reply to the Assam Rifles  Directorate letter the MHA had ruled out  vide their letter No.27011/103/97-P.F.1  dated 3rd March, 1998 that Assam Rifles  can redesignate HC (RM) as Warrant  Officer if pre-revised and revised pay  scale of Hav(RM) in Assam Rifles are  identical to the pay scale of HC(RM) in  BSF and CRPF.  I submit that the main  hurdle in implementing the said order in  Assam Rifles is that there is disparity in  pay scales of RM in Assam Rifles to that  of BSF and CRPF.  The Hav(RM) of Assam  Rifles were drawing pay scales of Rs.975- 1660/- w.e.f. 1st January, 1986 and  replacement scale as given in the 5th  Central Pay Commission is Rs.3200- 4900/- per month whereas in CRPF and  BSF the Hav (RM) was drawing pay scale  of Rs.1200-30-1560-40-2040/- per  month whose replacement scale in the 5th  Central Pay Commission is Rs.4000-100- 6000/-.  It is also pertinent to clarify here  that the qualification of HC(RM) in other

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Central Police Organisations that of  Assam Rifles Hav (RM) is almost par\024\005\005. \005..  \005..  \005..  \005..  \005..  \005..  \005.. \023As per averment made in Para 13 of the  writ petition, the petitioner is seeking  higher pay scale viz 5000-150-8000/-  admissible to Delhi Police personnel.  I  submit that since the Assam Rifles is at  par with other central police organization,  the demand of the petitioner, for parity  with an entirely another department is  not possible.  In view of the facts narrated  above and to bring parity with other  central police organization, it is proposed  to grant warrant officers rank (Equivalent  to Assistant Sub Inspector) to technical  categories including radio mechanics vide  Assam Rifles Directorate Letter  No.A/Pers/45th CPC/Vol III/98/77 dated  6th April, 1998 and subsequent queries  sought by the MHA has been replied.  I  submit that MHA has also informed to  the LOAR (Liaison Office, Assam Rifles)  that the case for introduction of Warrant  Officers rank to technical categories is  presently lying with Ministry of Finance  (E-III) since 29th August, 2000.\024 (Emphasis supplied)

18.     From the afore-extracted paragraphs of the counter  affidavit and the resume of correspondence referred to above,  it clearly stands admitted by the petitioners herein that: (i) all  the paramilitary forces, including Assam Rifles are at par with  each other and (ii) there was apparent \021disparity\022 in the pay  scales of the personnel of Assam Rifles with their counterparts  in other central paramilitary forces.  In order to rectify this  disparity, Director General Assam Rifles, petitioner No.2  herein, vide his letter dated 18th February, 1998 had, in fact,  taken up the grievance of the respondent with the Ministry of  Home Affairs, inter alia recommending re-designation of  Havildar (RM) Gd.-I and II of Assam Rifles as Warrant Officer  and for replacement of pay scale of Rs.4000-100-6000 to bring  them at par with their counterparts in other central police  organization.  However, the Ministry of Home Affairs vide letter  dated 3rd March, 1998 while accepting the said proposal had  recommended re-designation of HAV/RM as Warrant Officer  but subject to the condition that the pre-revised and revised  pay scales of HAV/RM  in other paramilitary forces were  identical to the pay scales of  Head Constable (RM) in CRFP  and BSF.  Manifestly, in the instant case, the differentiation in  the pay scales of the two paramilitary forces is sought to be  achieved not on the ground of dissimilarity of academic  qualification or the nature of duties and responsibilities but  only on the ground that there was \021initial anomaly\022 in the  Fourth Central Pay Commission Report.  The counter affidavit  does not even attempt to explain how the case of the HAV/RM  in Assam Rifles is different from that of Radio Mechanics in  other central paramilitary forces.   19.     In the present case, therefore, in the light of the admitted  factual position, the question of examination of external  comparisons, internal relativities and other factors, to be kept  in view for job evaluation, considered to be a complex issue to  be studied only by expert bodies, does not arise.  As a  necessary corollary, the issue as to whether there is a  complete or wholesale identity between the said paramilitary

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forces, does not survive for consideration.   20.     Thus, the short question requiring our consideration is  whether having admitted in their affidavit referred to  hereinabove, the \021apparent disparity\022 and \021anomaly\022 in the pay  scales of Radio Mechanics, the administrative authorities, the  petitioners herein, could be permitted to perpetuate apparent  discriminatory differentiation in the pay scales because of  the  disparity in pre-revised and revised scales of the personnel of  Assam Rifles prior to the recommendations of the Fourth Pay  Commission, irrespective of the identity of their powers, duties  and responsibilities with other paramilitary forces.  In our  considered opinion, in view of the total absence of any plea on  the part of the Union of India that Radio Mechanics in other  paramilitary forces were performing different or more onerous  duties as compared to the Radio Mechanics in Assam Rifles,  the impugned decision of the Government was clearly  irrational and arbitrary and thus, violative of Article 14 of the  Constitution.   21.     On a conspectus of the factual scenario noted above, we  do not find any infirmity in the impugned directions given by  the High Court, warranting interference.  There is no merit in  this appeal and it is dismissed accordingly with costs.