Digamber Datt & Ors vs Union of India & Ors

Sl. No.,Rank Structure,Rationalized pre-Revised pay scale,Replacement Pay scale

1.,Constable/Security Assistant,Rs. 950-1400,Rs. 3050-70-4590

2.,Head Constable,Rs. 975-1600,Rs. 3200-85-4900

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3.,Assistant Sub-Inspector,Rs. 1320-2040,Rs. 4000-100-6000

4.,Sub-Inspector/ACIO-II,Rs. 1640-2900,Rs. 5500-175-9000

5.,Inspector/ACIO-I,Rs. 2000-3200,Rs. 6500-200-10500

6.,Subedar Major,Rs. 2000-3500,Rs. 6500-200-10500

It is settled legal position that the law pertaining to placement of posts in pay scales is within the domain of the executive to determine as to in,,,

what scale of pay a post has to be placed and since it is a matter of expert opinion, courts intervention has to be minimal and that it is not open for",,,

the courts to play the role of an expert. However, where it is apparently manifest that two posts are identical, it would be a denial of Article 14 of",,,

the Constitution to those who are placed in the lower pay scale. In that event, it would be within the domain of a writ court to issue appropriate",,,

directions.,,,

I have gone through the judgment in the case of Shri Dusmanta Kumar Rout vs Union of India & Ors. (supra). In that case also the petitioner,",,,

who belong to Havildar/Cipher category and aggrieved by the rank structure and pay as per guidelines of Fifty Pay Commission and Office,,,

Memorandum dated 22nd January, 1998, filed a writ petition being WP(C) No. 200(SH)/2008 and sought direction to the respondents to",,,

implement the benefits/recommendations of the Fifth Pay Commission to him. Similar is the challenge by the petitioners in the present writ petition.,,,

This Court vide order dated 30th March, 2009 after considering and noting the rival contentions of the parties and taking into consideration the",,,

judgment dated 11th February, 2005 rendered by Agartala Bench in W.P.(C) No. 497 of 2001, disposed of the writ petition filed by Hav./Cipher",,,

Dusmanta Kumar Rout with direction to the respondents to offer benefit of rank structure and pay per recommendation of the Fifth Pay,,,

Commission and Office Memorandum dated 22nd January, 1998 including the benefit of ACP per policy of the Government of India, 1997.",,,

The respondents also filed an application seeking review of the judgment dated 30th March, 2009 which was dismissed vide order dated 20th",,,

September, 2011. The judgment thus attained finality and the benefit thereof has already been given by the respondents to the petitioner, Dusmanta",,,

Kumar Rout.,,,

Further, in the case of ''Dineshan K.K. (Hav/RM) VS Union of India & Ors.'', the learned Single Judge vide judgment dated 11th February,",,,

2005 held that since there was changes in the rank structure and that the same was not carried out in the Assam Rifles, like other Central",,,

Paramilitary Forces, an apparent disparity in the service conditions of certain category of personnel including Radio Mechanics resulted, though",,,

they were given pay and allowances entirely on the lines of other Central Para Military Forces on the recommendation of Fourth Pay Commission.,,,

Being aggrieved, the Union of India filed an appeal before the Apex Court which also dismissed.",,,

The Supreme Court in the case of ''Union of India v. Dineshan K.K.'' (2008) 1 SCC 586, held that if the necessary material on the basis",,,

whereof the claim for parity of pay scale is made available on record with necessary proof and that there is equal work of equal quality and all,,,

other relevant factors are fulfilled the decision of the Central Government denying the benefits of same rank and pay structure to a Radio Mechanic,,,

in Assam Rifle as was given to other Central Paramilitary Forces was held to be clearly irrational and arbitrary and thus, violative of Article 14 of",,,

the Constitution. Relevant paragraphs of the aforesaid decision of the Hon''ble Supreme Court, are reproduced as under:-",,,

In State of Haryana v. Tilak Raj it has been observed that the principle of ""equal pay for equal work"" is not always easy to apply as there are",,,

inherent difficulties in comparing and evaluating the work of different persons in different organisations 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 emphasised that the problem about equal pay,,,

cannot be translated into a mathematical formula.,,,

Yet again in a recent decision in State of Haryana v. Charanjit Singh a Bench of three learned Judges, while affirming the view taken by this",,,

Court in State of Haryana vs. Jasmer Singh, tilak Raj, Orissa University of Agriculture & Technology v. Manoj K. Mohnaty and Govt. of W.B. v.",,,

Tarun K. Roy 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 of equal quality and all,,,

other relevant factors are fulfilled.,,,

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.,,,

Vide Order dated 10-10-1997 passed by the Ministry of Home Affairs in pursuance of Para 7 of the Ministry of Finance, Department of",,,

Expenditure Resolution dated 30-9-1997, it was notified that the President was pleased to rationalise the rank structure and pay scales of non-",,,

gazetted cadre of the Central Police Organisations and as a result of this exercise certain ranks were to be merged and the 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,,,

sent to all the paramilitary forces, including Assam Rifles.",,,

On 22-1-1998, 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 10-10-1997 was equally applicable to all advertised categories. In the said letter, directions with regard to",,,

the redesignation of the three posts including Head Constable (RM) as ASI in Central paramilitary forces along with their replacement pay scales,,,

were also ordered.,,,

It appears that the disparity in rank and pay in various Central paramilitary forces could not be resolved and on 24-4-2001, 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:,,,

Rank 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 Havildar wherein they are (sic whereas their) counterparts in CPOs are given ASI. MHA had ordered to submit proposal in directing cadre to,,,

cadre comparison with BSF where the rank of ASI is available in other technical and also along with financial implication. The proposal along with,,,

financial implication has been submitted to MHA and the case is lying with MOF for approval.""",,,

Having failed to receive any positive response from the Government, one of the Radio Mechanics 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 10-10-1997 and Office",,,

Memorandum dated 22-1-1998, Vide Order dated 26-12-2001, 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 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 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.""",,,

The Union of India took a specific stand in the aforesaid case of Dineshan K.K. (supra) that on the recommendation of the Fourth Pay,,,

Commission w.e.f. 1st January, 1986, the Assam Rifles Personnel have been granted revised pay and allowances entirely on the line of other",,,

Central Para Military Forces. But as the changes in the rank structure was not carried out in the Assam Rifles like other Central Para Military,,,

Forces an apparent disparity in the service conditions of certain category personnel including Radio Mechanic resulted. It has also been admitted,,,

that there is no dissimilarity of academic qualification or the nature of duties and responsibilities. In the instant case, the respondents have admitted",,,

that the Recruitment Rules of Assam Rifles Cipher category is amended as per Sixth Central Pay Commission and Ministry of Personnel, Public",,,

Grievances and Pensions Office Memorandum dated 24th March, 2009 and forwarded to the Ministry of Home Affairs for approval and",,,

notification. Restructured Peace Establishment, 2003 has also been amended and forwarded to Ministry of Home Affairs for approval, however, it",,,

will take more time for approval and publication of Gazette of India Notification.,,,

In the case of ''Jaipal & Others vs State of Haryana and Others'' reported as AIR 1988 SC 1504, it has been held by the Hon''ble Supreme",,,

Court that if the two class of persons do same work under the same employer, with similar responsibility, under similar working conditions, the",,,

doctrine of ''equal work equal pay'' would apply and it would not be open to the State to discriminate one class with the other in paying salary. The,,,

Supreme Court further held that the State is under a constitutional obligation to ensure that equal pay is paid for equal work. Article 39 (d),,,

contained in Part IV of the Constitution of India ordains the State to direct its policy towards securing ''equal pay for equal work'' for both men,,,

and women. Though Article 39 is included in the Chapter of Directive Principles of State Policy, but it is fundamental in nature. The purpose of the",,,

article is to fix certain social and economic goals for avoiding any discrimination amongst the people dong similar work in matters relating to pay.,,,

The doctrine of ''equal work equal pay'' would apply on the premise of similar work, but it does not mean that there should be complete identity in",,,

all respects. A temporary or casual employee performing the same duties and functions is entitled to the same pay as paid to a permanent,,,

employee.,,,

The principle of ""equal pay for equal work"" has been considered, explained and applied in a catena of decisions of the High Courts and the",,,

Supreme Court. The doctrine of ""equal pay for equal work"" was originally propounded as part of the Directives Principles of State Policy in Article",,,

39 (d) of the Constitution. Thus, having regard to the Constitutional mandate of equality and inhibition against discrimination in Article 14 and 16, in",,,

service jurisprudence, the doctrine of ""equal pay for equal work"" has assumed the status of fundamental right. Reference may be had to the case of",,,

''Randhir Singh vs Union of India'' reported as (1982) 1 SCC 618 and ''D.S. Nakara vs. Union of India'' reported as (1983) 1 SCC 305.,,,

As observed by the Hon''ble Supreme Court, in the case of ''State of Haryana & Anr. Vs. Tilak & Ors.'' Reported as 2003 (6) SCC 123; it is",,,

only where there is complete and wholesale identity between a group of employees claiming identical pay scales, only then it can be said that the",,,

principle of ''equal pay for equal work'' would be attracted.,,,

As held in the case of ''State Bank of India & Anr. Vs. M.R. Ganesh Babu & Ors.'' reported as 2002 (4) SCC 566, equivalence of posts has",,,

not to be judged merely with reference to mere volume of work. The touch stone on which equivalence has to be determined would be to consider,,,

the source of recruitment, educational and other qualifications required, as also the qualitative as also the quantitative nature of jobs. 30. The",,,

respondents have extended the benefit of the Fifth Pay Commission to the same category of person who had moved the Court, however, the",,,

petitioners being similarly situated are treated differently. In a decision of Division Bench of Punjab and Haryana High Court in the case of ''Satbir,,,

Singh vs State of Haryana'' 2002 (2) SCT 354 taken a view that when a judgment attains finality, the State is bound to grant relief to its employees",,,

who are similarly situated even though they are not party to the litigation. A final decision of the Court must not only be respected but should also,,,

be enforced and implemented evenly and without discrimination in respect of all the employees who are entitled to the benefit which has been,,,

allowed to the employees who have obtained orders from the Court. The matter is one of principle and should not depend upon who comes to the,,,

Court and who does not. In ''Dr. (Mrs.) Santosh Kumari vs. Union of India and Ors.'' (1995) 1 SCC 269, Hon''ble Supreme Court lamented that",,,

a more deserving candidate may not have the means to approach the Court, should he be denied the benefit which has been granted to those",,,

persons who dared the department with Court orders.,,,

The position which emerges from the present case is that to deny the benefit of the earlier judgment which has attained finality, to the similarly",,,

situated employee, is nothing but a blatant discrimination. Such an action smacks of arbitrariness and high-handedness on the part of the employer.",,,

To drive each one of the similarly placed person to obtain orders of the Court, would amount to exploitation of the employees having limited",,,

resources, time and energy. The Courts would also be burdened with un-necessary litigation. As a matter of fact, it is also the duty of the State to",,,

take remedial measures to curtail the litigation and to wipe off or minimize the already over-crowded dockets of the Courts. How to eliminate the,,,

arrear and curtail the delays are the questions which are vexing every mind. The State instead of extending its cooperation to bring down the,,,

litigation should not encourage its employees to take recourse to multiple legal proceedings on the same point which stands already decided finally.,,,

There is also an element of wastage of public money as the State has to defend the cases by employing its legal agency resulting in payment of the,,,

substantial amount in the shape of fees. The State should avoid the fruitless exercise and wasteful expenditure. Unnecessary litigation further breeds,,,

strained relations between the members of the staff and the State as a employer which has to be avoided at all costs. The State has pervasive,,,

obligation to discharge in relation to maintaining its accepted standards of employer-employee relationship. One of the obligations of the State is to,,,

be reasonable and fair in granting service benefits to its employees in accordance with the Service Rules and the principles enunciated in the,,,

decisions of the Courts. When the decisions to which the State is party become final, a duty is cast upon the State to grant relief to its employees",,,

who are similarly situated and on identical facts. In my view, it is not necessary for the State to require each one of its employees to approach the",,,

Court of law for grant of reliefs which State ought to grant to the employees in the normal course of its administration.,,,

In the light of aforesaid discussion, the writ petitions are allowed. The respondents are directed to give appropriate rank and pay scales to the",,,

petitioners as per the Fifth Central Pay Commission and Officer Memorandum dated 22nd January, 1998 including financial up-gradation under",,,

modified Assured Career Progression Scheme of the Government of India, if any, within a period of three months.",,,

No order as to cost.,,,