UNION OF LNDIA & ORS. v. DINESHAN K.K

Citation: [2008] 1 S.C.R. 100

Court: Supreme Court of India

Bench: C.K. THAKKER, D.K. JAIN

Case summary

UNION OF LNDIA & ORS. v. DINESHAN K.K.pdf

Judgment text

[2008] 1 S. C. R. 100 UNION OF lNDIA & ORS. ~ v. DINESHAN K. K. (C. A. No. 25 of 2008) JANUARY 4, 2008 . (C. K. THAKKER AND D. K. JAIN, JJ. ] > Service Law - Pay scales - Parity in - Rank of 'Radio /I Mechanics' in Assam Rifles - Claim of parity with their counterparts in other paramilitary forces - Disparity arising due to initial anomaly in the Fourth Pay Commission irrespective of difference in their powers, duties and responsibilities - Disparity admitted by the authorities - Held: The Radio Mechanics were entitled to parity in pay scale with their counterparts in other paramilitary forces - Denial ofparity by the authorities is 'irrational arbitrary and violative of Article 14 of the Constitution - Constitution of India, 1950 -Article 14 - Doctrine of equal pay for equal work. -s.

Constitution oflndia, 1950 - Articles 14, 16 and 39 (d) - Doctrine of equal pay for equal work - Nature and applicability of - Held: Initially it was introduced as a part of Directive Principles, later assumed status of fundamental right - The doctrine has no mathematical application in every case of similar work. Judicial Review- Of pay fixation - Held: Equation ofpay II being complex, is generally left to the Executive and expert bodies - However, judicial review is permissible, where the employee is treated unjustly and arbitrarily by State action or inaction. By letter dated 10. 10. 1997 by the Ministry of Home Affairs of Government of India notifying that President of India was pleased to rationalize the rank structure and pay scales of non-gazetted cadre of central police organizations.

In February 1998, Directorate of Assam Rifles brought to the notice of the Ministry that disparity in the service conditions of certain category of personnel including the rank of Radio Mechanic had arisen and recommended re-designation of Radio Mechanic and Head Constable in Assam Rifles as Warrant Officer and also for replacement of pay scale of Rs. 4000-6000 to bring them at par with their counterparts in other paramilitary forces. The Ministry by letter dated 3. 3. 1998 informed them that they could redesignate 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. The disparity could not be resolved. On 24. 4. 2001, Director General of Assam. Rifles submitted a report to the Government, with regard to the progress ori pay anomaly cases. As there was no positive response from the Government, one of the Radio .

, Mechanics issued a Notice of Demand to the Government and also to Director General of Assam Rifles praying for giving effect to the Office Order dated 10. 10. 1997. By order dated 26. 12. 2001 the Government rejected the recommendation made by Director General of Assam Rifles. Respondents working in the rank of RadiO Mechanic in Assam Rifles filed writ petition. High Court, allowed the same. Hence the present appeal. Dismissing the appeal, the Court HELD: 1. 1 The doctrine of 'equal pay for equal work' .. was originally propounded as part of the Directive Principles of the State Policy in Article 39(d) of the Constitution. Having regard to the constitutional mandate of equality and inhibition against discrimination in Articles ·14 and 16, iri service jurisprudence, the doctrine of 'equal pay for equal work' has assumed status of a fundamental right. [Para 9] [107-G, 108-A, C] D. S. Nakara and Ors. vs. Union of India 1983 (1) SCC 305 - followed. Randhir Singh vs.

Union of India and Ors. 1982 (1) SCC 618 - relied on. 1. 2 Initially, the said principle was being applied as an absol'ute 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. [Para 10] [108-D, E] Secretary, Finance Department and Ors. vs. West Bengal Registration Service Association and Ors. 1993 Supp ; (1) SCC 153; State of Haryana and Anr. vs. Haryana Civil ~ Secretariat Personal Staff Association 2002 (6) SCC 72 referred to. 1.

:i 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. When there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are tr~ated differently merely because they belong to different departments or the basis for classification of posts is exfacie irrational, arbitrary or unjust, it is open to the Court to intervene. [Para 10] [108-F, G; 109-A, B] State of Haryana and Ors. vs. Charanjit Singh and Ors. 206 (9) sec 321 - relied on. 41-" State Bank of India and Anr. vs. M. R. Ganesh Babu and Ors. 2002 (4) SCC 556; State of Haryana and Anr. vs. Tilak Raj and Ors.

2003 (6) SC 123; State of Haryana and Ors. vs. Jasmer Singh and Ors. 1996 (11) SCC 77; Tilak Raj Orissa University ofAgriculture and Technlogy. and Anr. vs. Mano) K. Mohanty 2003 (5) SCC 188; Government of WB. vs. Tarun Roy and Ors. 2004 (1) sec 347 - referred to. " 2. 1 The administrative authorities having admitted in their affidavit the 'apparent disparity' and 'anomaly' in the pay scales of Radio Mechanics, could not 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 t the recommendations of the Fourth Pay Commission, . ' irrespective of the identity of their powers, duties and ' responsibilities with other paramilitary forces. 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 decision of the Government was clearly irrational and arbitrary and thus, violative ofArticle 14 of the Constitution. [Para 20] [115-G, H; 116-A, B] 7. 2 It is admitted by the petitioners that: (i) all the paramilitary forces, including Assam Rifles are at par with each other and (ii) there was apparent 'disparity' in the ' pay scales of the personnel of Assam Rifles with their -· counterparts in other central paramilitary forces. 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 'initial anomaly' in the Fourth Central Pay Commission Report.

The counter affidavit filed by Union of India 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. [Para 18] [114-G, 115-D] 2. 3 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 nof arise. As a necessary _, corollary, the issue as to whether there is a complete or wholesale identity between the said paramilitary forces, does not survive for consideration. [Para 19] [115-E-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 25 of 2008. From the final Judgment and Order dated 11. 2. 2005 of the High Court of Gauhati (Agartala Bench) in W. P. (C) No. 497/ 2001. .. B. Dutta, A. S. G. , Sunita Sharma and Sushma Suri for the "· Appellants. Ranjit Kumar, K. V.

Vishwanathan, Hiren Dasan, Kalyan Bhaumik, Dhirendra Kumar Misra and Mrs. Sarla Chandra for the Respondent. The Judgment of the Court was delivered by D. K. JAIN, J. : 1. Delay condoned. ; 2. Leave granted. 3. This appeai 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 I 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 25th 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 theRadio 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·wrirpetition 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 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 'apparent disparity' 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 redesignation of the ranks could not be carried out in the light of the said communication as there was 'disparity' 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 'disparity' 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, t:1e High Court issued the aforenbted directions, which are questioned in this appeal. 7. Mr. 8. Dutta, learned Additional Solicitor General, appearing for the Union of India contended that the direction . # . 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) ofAssam Rifles were drawing pay scales of ~·- Rs. 9'75-1660/- 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 I Central Pay Commission is Rs. 4000-100-6000/-. It is also pertinent to clarify here that the qualification of HC(RM) in other Central Police Organisations that ofAssam Rifles Hav (RM) is almost par''... .... "As per averment made in Para 13 of the writ petition, the petitioner is seeking higher pay scale viz 5000-150-80001 - admissible to Delhi Police personnel. I submit that since the Assam Rifles is at par with other central police or:qanization, 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 1 Assam Rifles Directorate Letter No. A! Pers/45 h CPCNol 111/98177' 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-111) since 29th August, 2000. " (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 'disparity' 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 1 letter·dated 18 h 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. -1 and II . of Assam Rifles as \/\/arrant 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 redesignation of HAV/RM as Warrant Officer but subject to the coripition that the pre-revised and revised pay scales of HAV/ RM inother 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 soug~t 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 'initial ,.. anomaly' 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 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 'apparent disparity' and 'anomaly' in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate appa!

ent 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 impunned decision of the Government was clearly irrational and arbitrary and thus, violative ofArticle 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. K. K. T. Appeal dismissed. )