Bombay High Court
All India Salt Department Employees ... vs Unionf Of India & Ors on 9 April, 2018
Author: M. S. Sonak
Bench: V. K. Tahilramani, M. S. Sonak
JUDGMENT-WP-1983-03-1655-04-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 1983 OF 2003
The Union of India & Ors. ...Petitioners
Versus
All India Salt Department
Employees Union & Ors. ...Respondents
WITH
WRIT PETITION NO. 1655 OF 2004
All India Salt Department
Employees Union & Ors. ...Petitioners
Versus
The Union of India & Ors. ...Respondents
Mr. Rui Rodriques with Mr. Y. R. Mishra and Mr. D. P. Singh
for Petitioners in WP 1983 of 2003 and for Respondents in
WP 1655 of 2004.
Mr. A. Y. Sakhare - Senior Advocate i/b. Mr. S. P. Saxena for
Petitioners in WP 1655 of 2004 and for Respondents in WP
1983 of 2003.
CORAM : SMT. V. K. TAHILRAMANI, Acting C.J. &
M. S. SONAK, J.
Date of Reserving the Judgment : 22 March 2018
Date of Pronouncing the Judgment : 09 April 2018
JUDGMENT :
1] Heard the learned counsel for the parties.
page 1 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- 2] The challenge in both these petitions is to the judgment and order dated 9th October 2002 in Original Application No. 635 of 1995 and the order dated 28th February 2003 in review petition no. 13 of 2003 in OA 635 of 1995 made by the Central Administrative Tribunal (CAT) Mumbai Bench.
3] OA No. 635 of 1995 had been instituted by All India Salt Department Employees Union & Ors. (petitioners in writ petition no. 1655 of 2004 - hereafter referred to as 'the petitioners') seeking the placement of the Inspectors in Central Salt Department in the pay scale of Rs.1640-2900 (with effect from 1st January 1980) so as to achieve the parity with the Inspectors of Central Excise Department. By the impugned judgment and order dated 9th October 2002, the CAT, partly allowed OA 635 of 1995 and directed the placement of the Inspectors in the Salt Department in the pay scale of Rs.1600-2660 with effect from 1st January 1980 (notionally). The Union of India, thereupon, instituted review petition no. 13 of 2003, objecting to such placement with effect from 1st January 1980. According to the Union of India, such placement, if at all, could have been with page 2 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- effect from 1st January 1996. By order dated 28th February 2003, the CAT, disposed of review petition no. 13 of 2003. The date of 1st January 1980 was modified to 1st January 1986. The petitioners have instituted writ petition no. 1655 of 2004, aggrieved by the impugned orders to the extent they deny the Inspectors the scale of Rs.1640-2900 with effect from 1st January 1980 together with all consequential benefits. Writ petition no. 1983 of 2003 has been instituted by the union of India questioning the impugned orders, to the extent, they reject the contention that the scale of Rs.1600-2660 should have been made applicable only from 1st January 1996 and not from 1st January 1986. In a sense, therefore, both these petitions are cross petitions questioning the impugned judgments and orders made by the CAT. It is therefore, only appropriate that both these petitions are disposed of by a common judgment and order. 4] Mr. Sakhare, the learned Senior Advocate for the petitioners points out that historically the Inspectors in the Central Salt Department and the Inspectors in the Central Excise Department have always been treated at par, particularly, when it comes to pay scales. He points out that page 3 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- upto the year 1947, there was a unified department of Central Excise and Salt and consequently, the Inspectors in the two Sections constituted a unified cadre. He points out that in August 1947 on the basis of a report of a Committee especially appointed, the department was bifurcated but parity in pay scales was maintained and recognized even in the recommendations of the First Central Pay Commission. 5] Mr. Sakhare submits that possibly on account of inadvertence, a disparity arose in the recommendations of the Second Central Pay Commission. The Inspectors in Salt Department were placed in the pay scale of Rs.150-300 and their counter parts in the Central Excise Department were placed in the pay scale of Rs.210-380. Mr. Sakhare points out that the petitioners therefore represented and demanded for restoration of parity with effect from 1st July 1959.
6] Mr. Sakhare points out that the Central Government appointed a Staff Reorganization Unit (SRU) to consider the grievances of the petitioners. SRU upon due appreciation o the matter, recommended suitable corrective measures.
page 4 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- The Central Government, accepted the report of the SRU and restored parity with effect from 1st April 1966, instead of 1st July 1959 as demanded by the petitioners. 7] Mr. Sakhare submits that when the Third Central Pay Commission submitted its recommendations, once again, disparity surfaced in as much as Inspectors in Salt Department were placed in the pay scale of Rs.425-700 and the Inspectors of Central Excise Department were placed in the pay scale of Rs.425-800.
8] Mr. Sakhare points out that the petitioners thereupon instituted writ appeal no. 209 of 1979 before the Madras High Court seeking for restoration of parity. By judgment and order dated 15th March 1985, the parity was ordered to be restored and in pursuance of the same, the Central Government, did restore parity.
9] Mr. Sakhare points out that possibly, on account of a ruling of the Central Administrative Tribunal, Jodhpur Bench, the Inspectors in the Central Excise Department, were directed to be placed in the pay scale of Rs.500-900 with page 5 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- effect from 1st January 1980. This was on the basis of claim for parity with the Inspectors in the Income Tax Department. Thereafter however, no corresponding revision in the pay scales of the Inspectors in the Salt Department was effected, and they continued to draw salary in the pay scale of Rs.425-800.
10] Mr. Sakhare points out that the petitioners once again represented but were informed that recommendations of the Fifth Central Pay Commission were due and the pay commission will look into the grievances of the petitioners. The Fifth Central Pay Commission, however, failed to appreciate the grievances of the petitioners. The petitioners, were therefore constrained to institute OA No. 635 of 1995 before the CAT, Mumbai.
11] Mr. Sakhare submits that the Madras High Court, in its judgment and order dated 15th March 1985, upon detailed consideration of the matter had directed parity. This decisions binds the Central Government and in fact, was implemented by the Central Government at least upto 1st January 1980. Mr. Sakhare submits that consequent upon page 6 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- revision in the pay scales of Inspectors of the Central Excise Department, it was incumbent upon the Central Government to correspondingly revise the pay scales of Inspectors in the Salt Department as well. He submits that the failure to do so, violates the equality mandate enshrined in Article 14 of the Constitution of India. 12] Mr. Sakhare submits that even otherwise, there is ample material on record which establishes that there is no significant difference in qualifications for appointment as well as the work discharged by the Inspectors in the Salt Department and the Inspectors in the Central Excise Department. Mr. Sakhare submits that in fact the Inspectors in the Salt Department are required to possess specialized qualifications like graduation in physics and chemistry. In contrast, he points out that there is no such requirement of specialized qualifications for recruitment as Inspectors in the Central Excise Department. Mr. Sakhare points out that even the duties of the Inspectors in the Salt Department are much more onerous than the duties of Inspectors in Central Excise Department. Mr. Sakhare craves leave to produce on record compilation of page 7 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- documents and submits that from such documents, it is very clear that the Inspectors in the Salt Department and the Inspectors in the Central Excise Department, at the very minimum discharge equal work. On these basis, Mr. Sakhare submits that there is no reason to deny to the Inspectors in the Salt Department equal pay by invoking the principle of equal pay for equal work. Mr. Sakhare submits that the principle of equal pay for equal work, is no longer a mere directive principle of State policy but is an enforceable right in terms of Article 14 read with Article 39(d) of the Constitution of India. Mr. Sakhare relies on State of Kerala vs. B. Renjith Kumar & Ors. (2008) 12 SCC 219, Union of India vs. Dineshan K. K. (2008) 1 SCC 586, K. T. Veerappa & Ors. vs. State of Karnataka & Ors. (2006) 9 SCC 406, Randhir Singh vs. Union of India & Ors. (1982) 1 SCC 618, and Purshottam Lal & Ors. vs. Union of India & Anr. (1973) 1 SCC 651.
13] Mr. Rodriques, the learned counsel for the respondents (Union of India) submits that plea similar to the one now made by the petitioners was also made before page 8 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- the Jodhpur Bench of the CAT. The same, has been already turned down by Jodhpur Bench. In such circumstances, the CAT, Mumbai Bench, was entirely justified in dismissing the petitioners original application. He submits that the principle of comity clearly applies in such matters and therefore no fault can be found with the impugned judgment and order made by the CAT, Mumbai Bench. Mr. Rodriques, relies upon Sub Inspector Rooplal & Anr. vs. Lt. Governor through Chief Secretary, Delhi & Ors. (2000) 1 SCC 644, to submit that a decision of the coordinate bench of the CAT binds another Bench. On this basis, Mr. Rodriques submits that there is absolutely no jurisdictional error in the impugned judgment and order so as to warrant any interference with the same. 14] Mr. Rodriques submits that the Fifth Central Pay Commission, which is an expert body for recommending pay scales for employees, upon a detailed consideration of the petitioners case / claim for parity, has recommended, separate pay scales. He submits that pay commission has expressly taken cognizance of the judgment and order made by the Madras High Court. The pay commission, has page 9 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- taken note of the additional duties assigned to and discharged by the Inspectors of the Central Excise Department and on such basis, recommended pay scales, which are only marginally higher than the pay scales recommended for Inspectors in the Salt Department. He submits that in the absence of any mala fides or patent unreasonableness or absurdity, there is no question of judicial review of the recommendations made by expert bodies like pay commissions. He submits that in such matters, restraint is what is commended by various decisions of the Supreme Court. He relies upon several decisions of the Hon'ble Supreme Court in support of his contentions.
15] Mr. Rodriques objects to the petitioners placing any additional material before this Court. In any case, Mr. Rodriques submits that on basis of such material, this court, exercising jurisdiction under Articles 226 and 227, ought not to determine the highly contentious and disputed questions of fact as to whether there is any quantitative and qualitative equality in the work discharged by the Inspectors in the Salt Department and the Inspectors in the page 10 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- Central Excise Department. Mr. Rodriques submits that in fact the material on record, including, in particular, the material in the form of recommendations of pay commission reports clearly establishes that there is no longer any parity between the duties discharged by Inspectors in the Salt Department and the Central Excise Department. Mr. Rodriques submits that there is a sea change in the matters of application of the principle of equal pay for equal work and on basis of some superficial similarities, it is impermissible, to issue directions for revision of pay scales. He submits that the determination of pay scales, involves policy and unless, mala fides, unreasonableness or absurdity is established, the powers of judicial review may not be easily exercised. Again, he relies upon several decisions in support of his contentions. 16] Mr. Rodriques, in the context of the challenges in writ petition no. 1983 of 2003 instituted by the Union of India made it clear that the objection was not to the placement of the Inspectors in the Salt Department in the pay scale of Rs.1600-2660 but the contention was that such placement ought to have been with effect from 1st January 1996 and page 11 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- not 1st January 1986 as directed by the impugned judgments and orders made by the CAT. Mr. Rodriques submits that the recommendations of the Fourth Central Pay Commission were made effective from 1st January 1996 and therefore, the relief granted by the CAT ought to relate to 1st January 1996 and not to any prior date. Mr. Rodriques submits that at least this limited relief is liable to be granted in writ petition no. 1983 of 2003. 17] The rival contentions now fall for our determination. 18] At the outset, we propose to examine the challenge of the Union of India in writ petition no. 1983 of 2003. Upon due consideration of the contentions made by Mr. Rodriques, we find that the contentions, possibly proceed on the basis of some confusion regards dates from which the recommendations of the pay commissions came to be accepted and some misconstruction of the impugned judgments and orders made by the CAT. Upon conjoint reading of the impugned judgments and orders dated 9th October 2002 and 28th February 2003, it is quite clear that the CAT, has directed the Union of India to place the page 12 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- Inspectors in the Salt Department in the pay scale of Rs.1600-2660 on notional basis with effect from 1st January 1986. In so far as actual award of monetary benefits is concerned, the CAT, has directed the same with effect from 1st June 1994.
19] Earlier, the CAT, in its judgment and order dated 9th October 2002, had directed relief with effect from 1st January 1980. However, the CAT, in its order dated 28th February 2003 disposing of the review petition instituted by the Union of India has modified this direction and granted relief with effect from 1st January 1986. Recommendations of the Fourth Central Pay Commission were accepted and implemented with effect from 1st January 1986 and not 1st January 1996 as urged by Mr. Rodriques. Accordingly, we find no error in the impugned judgments and orders made by the CAT in directing the Central Government to place the Inspectors in the Salt Department in the scale of Rs.1600- 2660, with effect from 1st January 1986. Thus construed, we see no merit in writ petition no. 1983 of 2003 instituted by the Union of India. This petition is liable to be dismissed.
page 13 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- 20] We now proceed to examine the challenge of the petitioners on the ground of parity for historical reasons as also, parity by applying the principle of equal pay for equal work.
21] On the basis of the material on record, it does appear that there was parity between Inspectors in the Salt Department and Inspectors in the Central Excise Department historically, as well as in pursuance of the ruling of the Madras High Court in writ appeal no. 209 of 1979. This was in fact accepted by the Union of India and parity, which had, in the interregnum been disturbed, was in fact restored.
22] Later on, the Inspectors in the Central Excise Department instituted proceedings before the CAT, Jodhpur Bench, seeking for parity with Inspectors in the Income Tax Department. This claim was on the basis of certain additional duties and responsibilities assigned to the Inspectors of Central Excise Department and the Income Tax Department. The plea of the Inspectors of Central Excise Department was accepted by the CAT and such page 14 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- Inspectors, were directed to be placed in the same pay scale, as was applicable to the Inspectors in the Income Tax Department. This was a development after the implementation of the orders of the Madras High Court. 23] The petitioners claim for parity was referred for consideration by the Fifth Central Pay Commission, which was comprehensively examining the issues in relation to revision of pay scales. The Fifth Central Pay Commission examined the petitioners grievance in some detail. The Fifth Central Pay Commission took specific cognizance not only of the historical aspects but also the ruling of the Madras High Court, which had directed parity. The Fifth Central Pay Commission also took specific cognizance of matters like qualifications, nature of duties and responsibilities etc and upon consideration of the issue in its totality, the Fifth Central Pay Commission, did recommend the placement of Inspectors in the Salt Department in a higher pay scale than what they were otherwise drawing but did not recommend parity with the Inspectors in the Central Excise Department. The Fifth Central Pay Commission recommended placement of the Inspectors in page 15 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- the Salt Department in the pay scale of Rs.1600-2600 and the Inspectors in the Central Excise Department in the pay scale of Rs.1640-2900. This recommendation was accepted by the Union of India. In effect therefore, the petitioners, challenge the recommendations of the Fifth Central Pay Commission as accepted by the Union of India with effect from 1st January 1996.
24] The consideration of the Fifth Central Pay Commission is reflected in paragraph 72.22 to 72.26 of the report of the Fifth Central Pay Commission, which reads as follows :
"72.22 The existing cadre structure of the Indian Salt Service is as under:-
Designation No. of Posts Pay Scale(Rs.)
1. Salt Commissioner (Group 'A' Gazetted) 1 5100-5700
2. Deputy Salt Commissioner (Group 'A' 5 3700-5000 Gazetted)
3. Assistant Salt Commissioner (Group 'A' 9 3000-4500 Gazetted)
4. Superintendent of Salt (Group 'B' 22 2000-3500 Gazetted) 72.23 We have carefully considered the demands of the Indian Salt Service Officers Association, and recommend that the pay scale of the post of Salt Commissioner who is a Grade I Officer of the Indian Salt Service and Head of the Organization having the status of an attached office, be upgraded from Rs.5100-5700 to Rs.5900-6700. We also recommend for provision of a non-functional selection grade equivalent to Rs.4500-5700, which page 16 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04-
is available to other organized services for Salt Service Officers. We have further considered the demand of the Association for fixing the entry to the service at the Group 'A' level of Rs.2200-4000, and find it is justified. Consequently, we recommend the following grade structure for the Indian Salt Service Officers.
Existing No. of Posts Recommended No. of Posts Remarks
1. Salt Commissioner 1 Commissioner 1 No change in (Rs.5100-5700) (Salt) number of (Rs.5900-6700) posts.
2. NIL - Additional 1 By (Rs.4500-5700) Commissioner (SG) upgradation of one post of Deputy Salt Commissioner.
3. Deputy Salt Commissioner 5 Additional 1 No change.
(Rs.3700-5000) Commissioner
(Salt)
Rs.3700-5000)
4. Assistant Salt Commissioner 9 Deputy 0
Rs.3000-4500_ Commissioner Salt
(Rs.3000-4500)
5. NIL - Assistant 10 By
Commissioner upgradation
(Salt) of 10 posts of
Rs.2200-4000) Salt Supdt.
6. Salt Superintendent 22 Superintendent 12 Remaining
(Rs.2000-3500) (Salt) posts.
(Rs.2000-3500)
72.24 The Inspectors of Salt have represented to us that their pay scales were at par with those of Inspectors of Central Excise upto 1959 when the Salt department was separated from the Central Excise & Salt Department. Later, the pay scale of Inspector of Salt (1400-2300) was kept lower than that of Inspector of Central Excise (Rs.1640-2900), although both these categories of Inspectors were responsible for implementation of Central Excise & Salt Act, 1944. They have demanded the pay scale of Rs.1640-2900 at par with Inspectors of Central Excise. The cadre structure of Inspectors of Salt is as under:
page 17 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04-
Designation Pay Scale
Rs. No. of Posts
1. Inspector Salt 1400-2300 155
2. Deputy Superintendent of Salt 1640-2900 55
3. Superintendent of Salt 2000-3500 21
72.25 The recruitment qualifications prescribed
for the posts of Inspector in the two departments compare as under:-
Inspector of Salt Inspector of Central Excise Mode of Recruitment : 3 DR: 1P 3 Direct Recruitment: 1 Promotion Essential Qualification. University Degree University Degree in Science with Chemistry Through Staff Selection Commission. Method of Recruitment : Through Staff Selection Commission Duties :
Inspector of Salt Inspector of Central Excise Implementation of Central Excise Salt Act Assessment & Collection of Central 1944, and Salt Cess Act 1953, quality Excise Duty and Implementation of control, execution of labour welfare work, Central Excise & Salt Act 1944. guidance to manufacturers of salt, development work, safeguarding Central Government lands and implementation of universal iodization programme.
72.26 The pay parity between Inspectors of Salt and Central Excise Department, which was granted by the Madras High Court with effect from 1.7.1959 was maintained till the implementation of the Third CPC's recommendations. The pay scale of Excise Inspectors was enhanced to maintain parity with Inspectors of Income-tax, who were granted the higher pay scale of Rs.500-900 by the Board of Arbitration on account of delegation of certain powers to them under the 'Summary Assessment Scheme'. To maintain traditional parity between Inspectors of Income-tax and Central Excise, the Fourth CPC granted them the pay scale of Rs.1640-2900. Considering the issue in totality and in the light of our general recommendations on the pay scale of Supervisory posts involving direct recruitment of University graduates, we recommend a higher pay scale of Rs.1600-2660 for Inspectors of Salt in present terms.
There will be no change in the existing pay scale of page 18 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- Deputy Superintendent Salt (Rs.1640-2900) as a result of this upgradation."
25] From the aforesaid, it is clear that the reason for the higher pay scales awarded to the Inspectors in the Central Excise Department is the fact that such Inspectors were assigned certain additional duties and were conferred with certain additional powers. On the basis of such distinguishing factors and even after, taking into consideration the decision of the Madras High Court and the historical setting in relation to the two cadres, the Fifth Central Pay Commission which is an expert body, in such matters, did recommend, higher pay scales to Inspectors from the Salt Department but not parity with the Inspectors in the Central Excise Department.
26] The CAT has held, and perhaps rightly that the scope of judicial review into recommendations made by the expert bodies like pay commissions, is extremely limited. Unless, a case of patent perversity or unreasonability is made out normally, judicial review, will not be readily resorted to in order to upset such recommendations or decisions based upon such recommendations.
page 19 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- 27] In Ramesh Singh vs. Union of India & Ors. (2008) 5 SCC 173, the Hon'ble Supreme Court after noticing that the grievance of the petitioners had in fact been considered by the Fourth and Fifth Central Pay Commissions, emphasized that the scope for interference with such recommendations or the decisions based upon such recommendations is extremely limited because the court does not normally substitute its views for those of expert bodies like pay commission unless some glaring infirmities are established.
28] In Union of India vs. Dineshan K. K. (2008) 1 SCC 586, the Hon'ble Supreme Court, has accepted the position that pay fixation is essentially an executive function, ordinarily, undertaken by an expert body like the pay commission, whose recommendations are entitled to a great weight, though not binding on the Government. Normally, the recommendations of an expert body like a pay commission, are not justiciable since the Court is not equipped to take upon itself the task of job evaluation, which is a complex exercise.
page 20 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- 29] In State of U.P & Ors. vs. U. P. Sales Tax Officers Grade II Association (2003) 6 SCC 250, the Hon'ble Supreme Court has held that there can be no denial of the legal position that the decision of expert bodies like the pay commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services of the nature of duties of the employees. 30] In State of West Bengal vs. Subhas Kumar Chatterjee & Ors. (2010) 11 SCC 694, the Hon'ble Supreme Court has recalled that it has time and again cautioned that the court should avoid giving a declaration granting a particular scale of pay and compel the government to implement the same. Equation of posts and equation of salaries is a matter which is best left to an expert body. Fixation of pay and determination of party in duties and responsibilities is a complex matter which is for the executive to discharge. Even the recommendations of the Pay Commissions are subject to acceptance or rejection, the courts cannot compel the State to accept the page 21 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:53 ::: JUDGMENT-WP-1983-03-1655-04- recommendations of the Pay Commissions though it is an expert body. The State in its wisdom and in furtherance of its valid policy may or may not accept the recommendations of the Pay Commissions. 31] In Secretary, Finance Department & Ors. vs. West Bengal Registration Service Association & Ors. 1993 Supp. (1) SCC 153, the Hon'ble Supreme Court, has held that it is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant page 22 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- study of the external comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to be kept in view for job evaluation may include (i) the work programme of his department (ii) the nature of contribution expected of him (iii) the extent of his responsibility and accountability in the discharge of his diverse duties and functions (iv) the extent and nature of freedoms/limitations available or imposed on him in the discharge of his duties (v) the extent of powers vested in him (vi) the extent of his dependence on superiors for the exercise of his powers (vii) the need to co-ordinate with other departments, etc. We have also referred to the history of the service and the effort of various bodies to reduce the total number of pay scales to a reasonable number. Such reduction in the number of pay scales has to be achieved by resorting to broadbanding of posts by placing different posts having comparable job charts in a common scale. Substantial reduction in the number of pay scales must inevitably lead to clubbing of posts and grades which were earlier different and unequal. While doing so care must be taken to ensure that such rationalisation of the pay structure does not throw up anomalies. Ordinarily a pay page 23 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- structure is evolved keeping in mind several factors, e.g., (i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre, (iv) minimum educational/technical qualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similar jobs, (viii) public dealings, (ix) satisfaction level,
(x) employer's capacity to pay, etc. These factors were referred to in these matters in some detail only to emphasise that several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court's interference is absolutely necessary to undo the injustice.
page 24 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- 32] In the aforesaid case, the Sub Registrars, had claimed for parity with State Service Officers in the matter of pay scales, particularly after the Sub Registrars, were conferred with the gazetted status. The Hon'ble Supreme Court however held that merely because the Sub Registrars were conferred gazetted status, and the registration service was included in State Service did not entitle the Sub Registrars to be placed in the higher scale if their duties and responsibilities did not justify the same. The Hon'ble Supreme Court held that one of the basic principles for pay fixation is that the salary must reflect the nature of duties and responsibilities attached to the post, meaning thereby that the pay scale must be commensurate with the task to be performed and the responsibility to be undertaken by the holder of the post. Merely because of conferment of gazetted status or placement in State Service, no qualitative change was brought about in the job performance of the Sub Registrars and their superiors with whom they claim parity. The Hon'ble Supreme Court, also rejected the submission based upon higher educational qualifications prescribed for direct recruits to the post of page 25 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- Sub Registrars by observing that educational qualification is only one of the many factors which has relevance to the pay fixation the complexity of the job put forth and the responsibilities attached thereto are entitled to great weight in determining the appropriate pay scale in the job. 33] Applying the aforesaid principles, we are unable to fault the view taken by the Central Administrative Tribunal in refraining from interfering with the recommendations of the Fifth Central Pay Commission and the decision which is ultimately based upon such recommendation. The CAT, in the present case, after noticing that the decision of the Union of India did not correspond to the recommendations actually made by the Fifth Central Pay Commission, has in fact, granted relief to the Inspectors in the Salt Department by ordering their placement in the scale of Rs.1600-2660. 34] The next challenge, on the principle of equal pay for equal work, also, cannot be accepted in the facts and circumstances of the present case. From the perusal of the pleadings before the CAT, it is quite clear that the fundamental facts in support of such a plea are absent. In page 26 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- fact, no material or in any case, no significant material was even produced before the CAT in support of parity on the principle of equal pay for equal work. The entire emphasis was on the decision of the Madras High Court. 35] As noted earlier, the decision of the Madras High Court has been duly considered by the Fifth Central Pay Commission. Even the Union of India, had earlier, complied with the decision of the Madras High Court and had revised salaries of the Inspectors in the Salt Department. However, at a later point of time, taking cognizance of the additional duties and responsibilities assigned to the Inspectors of the Central Excise Department and the Inspector in the Income Tax Department, there was some upward revision in the scales of these two cadres.
36] There is no material produced on record on basis of which, it cannot be conclusively held that there was some increase in duties or powers of the Inspectors in the Salt Department. The Fifth Central Pay Commission has taken into consideration these aspects and considering the limited scope of judicial review in such matters, it is really not page 27 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- possible to interfere with the recommendations of the pay commission or the decisions based thereon. Besides, in the absence of pleading of fundamental facts and production of proper material, it is not possible to award parity by invoking the principle of equal pay for equal work. 37] The petitioners, perhaps realizing this lacuna have attempted to produce on record a compilation of documents which according to them, establishes that the Inspectors in the Salt Department discharge the same duties or responsibilities as compared to their counterparts in the Central Excise Department. Although, we agree with Mr. Rodriques that normally, party should not be permitted to produce such material for the first time before this court, we did go into such material with the assistance of Mr. Sakhare, the learned Senior Advocate for the petitioners. 38] The material, is really, in the form of notings, recommendations and on basis of such material, it will not be possible for us to accept the plea of equal pay for equal work. We have also carefully perused the decisions relied upon by Mr. Sakhare in support of the plea for equal pay for page 28 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- equal work. All the decisions, lay down the principle that Article 14 read with Article 39(d), mandates equal pay for equal work. In the present case, there is absolutely no dispute in so far as the principle is concerned. The real question is whether there is material on record to grant the Inspectors of the Salt Department benefit on the basis of such a principle. Merely stating that historically there was a unified cadre or that there was a unified cadre or that up to a particular point of time there was parity in the scales is not by itself sufficient, to maintain the action on the basis of the principle of equal pay for equal work. 39] This is a case where an expert body like the Fifth Central Pay Commission has also examined the petitioners plea based upon the principle of equal pay for equal work but found no reason to recommend the Inspectors from the Salt Department the same scales of pay as compared to their counterparts i.e. the Inspectors in the Central Excise Department. The Fifth Central Pay Commission, has no doubt, noted the grievance of the petitioners and on such basis, recommended a higher scale of pay. The CAT, by the impugned judgment and order, has in fact, ordered revision page 29 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- in the pay scales of the Inspectors in the Salt Department, relying, once again, upon thee recommendations of the Fifth Central Pay Commission.
40] In Government of A.P. & Anr. vs. P. Hari Hara Prasad & Ors. (2002) 7 SCC 707, the issue was of parity in pay scales between employees of subordinate courts and employees of the State Secretariat. The High Court, had in fact ordered parity in scales but the Hon'ble Supreme Court reversed the High Court by holding that ordinarily it is not permissible for the High Court while exercising writ jurisdiction under Article 226 to go into the nature of duties of employees and on that basis direct grant of pay scales which are applicable to employees of different services. Therefore, the issue of writ of mandamus directing parity of pay scales on the assumption that the posts were identical and two sets of employees performed the same nature of duties was not sustained in so far as the employees of subordinate courts are concerned.
41] In State of Maharashtra vs. Association of Court Stenographers, P.A. P.S. (2002) 2 SCC 141 the page 30 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- question of grant of parity of pay to the employees of the courts came up for consideration before a Three Judge Bench of the Hon'ble Supreme Court. Referring to the earlier decision in Supreme Court Employees' Welfare Association vs. Union of India (1989) 4 SCC 187, it was held therein that the judgment of the High Court in exercise of its jurisdiction under Article 226 issuing writ of mandamus directing a particular scale to be given to the Courts Stenographers, Personal Assistants and Personal Secretaries attached to the Hon'ble Judges of the High Court cannot be sustained. It was further held that it is no doubt true that the doctrine of equal pay for equal work is an equitable principle but it would not be appropriate for the High Court in exercise of its discretionary jurisdiction under Article 226 to examine the nature of work discharged by the staff attached to the Hon'ble Judges of the Courts and direct grant of any particular pay scales to such employees.
42] In State of Haryana & Anr. vs. Haryana Civil Secretariat Personal Staff Association (2002) 6 SCC 72, the Hon'ble Supreme Court has held Fixation of pay and page 31 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided cases, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far-reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision taken by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust page 32 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. 43] In State of U.P. vs. J.P. Chaurasia (1989) 1 SCC 121, the Hon'ble Supreme Court has held that the application of the principle of equal pay for equal work 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 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 of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The page 33 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. 44] In Umesh Chandra Gupta vs. Oil and Natural Gas Commission 1989 Supp. (1) SCC 584, it has been held that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the court to determine by relying upon the averments in the affidavits in the interest of the parties. It has been observed in this judgment that it is not the business of this Court to fix the pay scales in exercise of its jurisdiction under Article 32 of the Constitution. It is really the business of the Government or the management to fix the pay scales after considering various other matters and the court can only consider whether such fixation of pay scales has resulted in an invidious discrimination or is, arbitrary or patently erroneous in law or in fact.
45] Applying all such principles in the facts of the present case, it will really not be possible for us to hold in favour of the petitioners in writ petition no. 1655 of 2004 by applying the principle equal pay for equal work.
page 34 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 ::: JUDGMENT-WP-1983-03-1655-04- 46] For the aforesaid reasons, both the writ petitions, are liable to be dismissed and are hereby dismissed. Rule is discharged in both the writ petitions. There shall be no order as to costs.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE) 47] At this stage, the learned counsel for the petitioners in writ petition no. 1983 of 2003 seeks a stay on the implementation of the judgment and order dated 9th October 2002 and 28th February 2003. From the year 2003 onwards there was no such stay in operation. Accordingly, we are unable to accede to the request for any stay at this stage.
(M.S. SONAK, J.) (ACTING CHIEF JUSTICE) CHANDKA page 35 of 35 ::: Uploaded on - 09/04/2018 ::: Downloaded on - 10/04/2018 02:00:54 :::