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PETITIONER: UNION OF INDIA AND OTHERS

       Vs.

RESPONDENT: PRADIP KUMAR DEY

DATE OF JUDGMENT:       09/11/2000

BENCH: Doraiswamy Raju & Shivaraj V. Patil.

JUDGMENT:

Shivaraj V. Patil

L...I...T.......T.......T.......T.......T.......T.......T..J     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

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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@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 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.

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   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

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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@@                      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ reads:   18.   The first question regarding entitlement  to@@ JJJJJJ 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

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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

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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.