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PETITIONER: STATE OF WEST BENGAL AND ORS.

       Vs.

RESPONDENT: MADAN MOHAN SEN AND ORS.

DATE OF JUDGMENT03/02/1993

BENCH: JEEVAN REDDY, B.P. (J) BENCH: 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.

HEADNOTE: 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

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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]

JUDGMENT: 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

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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

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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

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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

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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. 405