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PETITIONER: UNION OF INDIA & ORS.

       Vs.

RESPONDENT: SHRI RAM GOPAL AGARWAL & ORS

DATE OF JUDGMENT:       15/01/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT: With (C.A Nos. 148/98 & of 1998) (SLP (C) 885/98) (Arising out of C.C.No 20506 of 1993/ S.L.P.(c) No. 502-503 of 1996)                       J U D G M E N T Misra, J.      Delay condoned in C.C. No. 20506.      Special leave granted.      The Civil  Appeal No. 4368 of 1991 is filed against the order  dated   March  30,   1990  passed   by  the   Central Administrative Tribunal,  Gauhati Bench,  Bench, Gauhati, by virtue of  which the order contained in letter No. R-IV 1/87 Orp/CRPF/EP-IV dated  February 24,  1989 was  quashed. Civil Appeal  arising   out  of   S.L.P.  (C)  No.......  of  (993 (O.C.20506/93) arises  out of  order dated  October 01.1992, allowing  the   application  by   the  respondents  claiming enhancement of the allowance, directing the appellant to pay 50 per  cent of  the amount  in terms of the judgment of the Gauhati Bench  in the (O.A No. 17 of 1988 dated 30.3.1990 as aforesaid. The  main matter  is  still  pending  before  the Tribunal to be listed after disposal of the present appeals. The C.As.  arising out  of Special  leave petition Nos, 502- 503/96 are  directed against  the order of the same Tribunal by which  if finally disposed of the matter with a direction to the  appellant to pay 50 per cent of the ration allowance to the non-gazetted non-combatised staff also which shall be subject to the further orders to be passed by this Court.      The only question involved in all the aforesaid appeals is whether  non-gazetted non-combatised staff when posted in static area that is to say non-operational area, is entitled for ration allowance or not?       The brief facts are, the concerned respondents are the members of the hospital staff working in the Central Reserve Police Force.  It Based  Hospital, Hyderabad. The contention of these  respondents  before  the  aforesaid  tribunal  and before us  was that they were unfairly denied the benefit of grant of ration money, which is available to combatised non- gazetted persons of the same force. Hence the contention was to direct  the Union  of India to grant them ration money on par with  the said  staff who are working on identical terms and conditions  as applicable  to the  aforesaid  combatised

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non-gazetted person. The appellants have refuted this claim. The case  is that  non-gazetted persons  of Central  Reserve Police Force  including ministerial  staff  were  sanctioned ration money  when they  were working  in operational areas. The said  concession was  extended top  the members  of  the Central Reserve  Police Force  at a  higher rate  where  the force is deployed on internal security duties. Further, this ration money  at the  rate of  Rs. 250/-  per month  was for combatised  persons    (non-operational  areas)  also.  This concession was  no admissible  to the  ministerial and  non- gazetted staff who were no combatised. The services of these concerned respondents  are governed  by  the  Central  Civil Services Rules  and other  such rules as framed from time to time by  the  Union  of  India  under  Article  309  of  the Constitution while  the other  category  of  the  employees, namely, combatised  personnel are  governed by  the  Central Reserve Police  Force Act.  It is  not in  dispute that  the respondents are  non-combatised members  of the  force.  The further case  of the  appellants is  that this  provision of ration money  allowance was  provided in the statute for the combatised  forces  as  they  were  working  mostly  on  the operational sensitive  areas.  It  is  on  these  reasons  a distinct  classification  was  made  by  the  Government  to provide allowance  to one and not to others. The Ministry of Home  Affairs   for  the  first  time  on  15th  July,  1968 introduced this  scheme by  granting an allowance of Rs 42/- per  month   to  the   non-gazetted   personnel;   including ministerial and hospital staff of the Central Reserve Police Force working  in certain operational areas. This amount was subsequently raised  from time  to time.  Later in  1975 the allowances were  graded in  two operational  areas like  the State  fo  Assam,  Tripura,  Mizoram,  Meghalaya,  Nagaland, Manipur etc.  In the  said areas the allowances were payable at the  rate of  Rs 74/-  whereas  in  West  Bengal,  except Darjeeling District,  the ration  allowance was Rs. 48/-. By another Circular dated 20th July, 1979 this was increased to Rs.100/- in qualifying areas. It is also not in dispute that the ministerial  staff and  the hospital  staff  in  Central Reserve Police  Force are  the civilian  staff  governed  by C.C.S. Rules.  On 20th  February, 1981,  the  Government  of India Ministry  of Home  Affairs vide  its letter  No. O-IV- 56/72 (Admn)  P.P.IV converted  the civilian  posts of  non- gazetted  ministerial   staff  into  combatised  staff.  The civilian and  hospital off staff were given option to choose combatised or  not. According to the scheme, who volunteered for the  combatisation would be given equivalent rank of the force, and  after combitisation  would be  governed  by  the C.R.P.F. Act  and Rules.  The concerned  respondents did not opt for combatised staff and remained in the civilian posts. That after  IVth Pay  Commission recommendations  some major changes were made and all the combatised civilian staff were also recommended  for all  the benefits  as to  the  Central Reserve  Police   Force  Personnel.   However,  as  per  the recommendations of  the 6th  October,  1987  Sanctioned  the ration money  only to  the non-gazetted combatised personnel and the  personnel who  have not opted were not entitled for the same. All the personnel who have opted for combatisation were governed by Central Reserve Police Force Act and Rules.      By Government  letter dated 6th October, 1987, the non- gazetted staff  who  were  not  combatised  including  those working in  operational area  ceased to  draw  ration  money which they  (those working in operational area) were drawing all along  since year  1968. However, with a view to restore the facility  of ration money to the aforesaid categories of staff a  proposal was  sent to  the Government  recommending

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grant of  ration money  to such staff who were drawing prior to the  said letter  viz, those working in operational area. On 24th  February, 1989,  after considering the proposal the Government of  India while  filling counter affidavit to the application  moved   by  the  respondents  before  the  said tribunal, stated  that this  relief of the applicant has now become infructuous  in view  of the  Government decision and subsequent order  dated 24th  February, 1989  as the  ration allowance was  restored to  such concerned  respondents, who were working  in the  operational  areas,  which  they  were drawing earlier.      Thus, after  this the only grievance that remains to be adjudicated is  whether the  aggrieved respondents, who have not opted  for combatisation,  should also  be  paid  ration money allowance  even in  static areas  that is  to say  not working in  sensitive by  operational areas.  The  tribunal, however, quashed  the aforesaid  letter dated 24th February, 1989 of  the Government  which restricted  the grant of such allowance only to the combatised force.      The tribunal  allowed the  relief  as  claimed  by  the concerned respondents  primarily on  the principle of "equal pay for  equal work".  In support  of this decision, learned counsel appearing  for the concerned respondents referred to the dismissal  of the  S.L.P. (C)  No..../92 (C.C  18847) on 24.1.1996 against the tribunal order which is similar to the present case.  We find  that this Special leave petition was dismissed solely  on the  ground of delay and not on merits. Another preference  was made of S.L.P. (C) No. 9605/90 which is also  dismissed by  this  Court  and  the  order  of  the tribunal was  affirmed. We  have perused the same. This is a case of members of nursing staff of various hospitals, CRPF, Gauhati. The  petitioners were  drawing uniform  and washing allowance at  the rate  of Rs.  200/- per  annum  and  their grievance was  that though  the rates of uniform and washing allowance etc,  have been  enhanced in  respect  of  nursing staff of  other hospitals  in the  Ministry  of  Health  and Family Welfare yet no such enhanced rate was mead admissible tot he  petitioners for which representations were made. The tribunal in  that case  relied on  office  Memorandum  dated 4.1.1999 issued  by the  Government of  India.  Ministry  of Health and  family Welfare, relating to the subject revision of rates  of various  allowances admissible  to the  nursing personnel in  the Central Government. The contention for the petitioners was  denial of enhanced rate of allowance to the petitioners  who  were  nurses  attached  to  CRPF  hospital discharging the  same nature  of work  as that  of   nursing staff attached  to any  other hospital under the Ministry of Health and   Family Welfare, is violative of Articles 14 and 16 of  the Constitution  of India.  The  Court  found  after looking into the nature of the duties of the petitioners and the nursing  staff of the Government hospitals are being one and relying  of AIR 1982 Supreme Court 879 Randhir Singh Vs. Union of  India & Ors. held, this is the case covered by the principle of   "equal pay for equal work". However, facts in the present case are different.      The present case would not fall under the same category in order to test he principle of "equal pay for equal work". The nature  of work, the sphere of work duration of work and other  special   circumstances,  if   any  attached  to  the performance of  the  duties  have  also  to  be  taken  into consideration. The  principle of  "equal pay for equal work" is well settled but to arrive at the conclusion the facts of each case  has to  be scrutinised  with  precision.  In  the present case,  it cannot  be disputed that the staff working on the  operational and  sensitive areas  including internal

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internal  security   have  to   perform  arduous  duties  in comparison to the civilian staff working in CRPF who are not on the  operation or  such areas. It is keeping this in view first a  classification and  distinction is  drawn inter  se between the  two classes that when performing duties on such operation and  sensitive areas  the grant  of  ration  money allowance is  made admissible  to both  but the  same is not made admissible  to the concerned respondents not working on such  operation   areas  etc.   Learned  counsel   for   the respondents argued  with vehemance  that even  earlier  such staff who  were non-combatised  when became  combatised were granted  the  allowance  while  performing  duties  on  non- operational areas  like the earlier combatised staff but the same civilian  staff who  did not opt for combatisation were excluded from ration money allowance which is discriminatory in nature.      We have  heard learned  counsel for  the parties and we find that  there is  clear  distinction  in  the  terms  and conditions of service, the nature of work and even tenure of service  inter  se  between  combatised  and  non-combatised personnels. The combatised personnel retire at the age of 53 while the  non-combatised personnel retire at the age of 55. The nature  of work,  so far  as  combatised  personnel  are concerned, are  arduous in  nature in  the  operational  and sensitive areas.  In fact  even the non-combatised personnel while working  in that operational areas and such sensitive, places are  granted the  ration allowances.  It is only when they are  working in ‘static areas there is no provision for this  allowance.   Even  therms  and    conditions,  service conditions are  totally different. The combatised personnels are governed  by Central  Reserve Police Force Act and Rules which is  an army  rule more  stringent in nature while non- combatised staff  is governed  by the  civilian law, namely, C.C.S. Rules  made by  the Government of India under Article 309 of  the Constitution.  The question of discrimination in the matter  of allowances  has to be listed differently even inter se  between those  falling under classs of  "equal pay for equal  work". In  cases where  some performing  overtime duties,  night  duties,  duties  in  hazardous  places  viz, mountain, terrain  at heights or at sensitive borde areas an additional allowance  is made  applicable for  the nature of work they  perform. Similarly,  when option  is given  it is with clear intention of there being plus and minus points in the two  categories. That  by itself differentiates inter se between the  tow. Once not option to enjoy the benefit as in the present  case, to  continue in  service of  one category upto larger  length of service (55 years) and not to involve in the  hazardous nature  of duties  with stringent  service conditions cannot  come forward  to claim and benefit of the other category  also on  the ground  of  discrimination.  In fact,  treating   unequal  to   be  equal  itself  would  be discriminatory, Thus,  we conclude  it is  neither a case of "equal pay  for equal  work" nor a case of discrimination or violation of  Articles 14  and 16  of  the  Constitution  of India.      In fact this distinction is being drawn on the basis of the report  of the  IVth Central  Pay Commission  submitted, which is  an expert  body in this regard. It is not possible for this  Court, on  the basis  of the  affidavits filed, to come to a clear conclusion specially in contradiction to the expert body  report such  as  IVth  Central  Pay  Commission Report, to  hold it  arbitrary unless  there is cogent facts and reasons  brought before  us, which is not in the present case. In 1989 Vol. I SCC 120 this Court observed as follows:      "The   first   question   regarding

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    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 of  volume  of  work  done  by      Bench  Secretaries,   Primarily  it      requires among other, evaluation of      duties and  responsibilities of the      respective   posts.    More   often      functions of  two posts  may appear      to be  th e  same or  similar,  but      there may  be difference in degrees      in the performance. 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. The equation of      posts or  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 or posts. It 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".      We find  in the  present case also the IVth Central Pay Commission making  a distinction  between  the  two  classes while recommending  the ration allowance to combatised staff personnel a nd denying to non-combatised staff personnel for the specified area.      We do  not find  anything on the report to deviate from the said option and for the reasons also to hold the same to be discriminatory  or violative of Articles 14 and 16 of the Constitution  of  India.  For  the  aforesaid  reasons,  the impugned orders  dated 30.9.90.  1.10.92 and  23.8.94 by the Tribunal are n ot sustainable.      It is further argued for the concerned respondents that during the  pendency of  the present Civil Appeal No. 436/91 (arising out  of SLP  (C) No. 15728/90, pursuant to be order passed by  this Court, 50 per cent of the said allowance was paid b  y the  appellant to the respondents and similarly by means  of   interim  order   in  C.A.  arising  out  of  SLP (C).......(C.C. 20506/93), the tribunal directed to pay this 50 per  cent allowance  and in  C.Ss. arising out of SLP (C) No. 502-503/96  also the  tribunal finally  disposed of  the appeal in  the same terms of paying 50 per cent of allowance to them subject to decision of this court in pending appeal. The contention  is that  in case  this appeal is allowed the recovery will  be pressed  against the concerned respondents for the  amount already  paid and  it would  result in great hardship. We  make it  clear that the amount already paid to them in  terms of the order of this Court of by the tribunal as aforesaid would no be recovered.      Hence for  these reasons  we are clearly of the opinion that  the   claim  of   the  concerned  respondents  is  not sustainable and  the learned  tribunal fell into an error by

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equating both  classes under the principle of "equal pay for equal work".      Hence, we  set aside  the judgment  and orders  of  the aforesaid tribunal dated 30.3.90, 1.10.92 and 23.8.94 passed in  the   aforesaid  three  appeals  and  uphold  the  order contained in the aforesaid letter dated 24th February, 1989. Accordingly, all  the aforesaid  appeals  stand  allowed  in terms of the orders passed above. Cost on the parties.