Meghalaya High Court
Shri Digamber Datt vs The Union Of India on 23 March, 2017
IN THE HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 403 of 2014
Shri Digamber Datt & Ors.
... Petitioners
- Versus -
Union of India & Ors.
... Respondents
BEFORE
HON'BLE MR JUSTICE VED PRAKASH VAISH
Present
Ms. R. Paul ... Counsel for Petitioners
Mr. N. Mozika ... Counsel for Respondents
Date of Hearing ... 16.03.2017
Date of Judgment ... 23.03.2017
WP(C) No. 311 of 2016
Shri Prakash Chandra Sharma & Ors.
... Petitioners
- Versus -
Union of India & Ors.
... Respondents
BEFORE
HON'BLE MR JUSTICE VED PRAKASH VAISH
Present
Ms. R. Paul ... Counsel for Petitioners
Mr. N. Mozika ... Counsel for Respondents
Date of Hearing ... 16.03.2017
Date of Judgment ... 23.03.2017
WP(C) No. 403 of 2014 Page 1 of 15
BY HON'BLE MR. JUSTICE V.P. VAISH
JUDGEMENT
By these two writ petitions, filed under Article 226 of the Constitution of India, the petitioners assail the action of the respondents in denying rank structure and pay scale to the petitioners as per guidelines of Fifth Pay Commission and Office Memorandum dated 22nd January, 1998 issued by the Ministry of Home Affairs, Government of India.
2. Since both the petitions involve identical question, both the petitions are being disposed of by this common judgement.
3. Briefly recapitulating the facts leading to the filing of the present petition are that the petitioners herein are working as Havildar/Cipher, Sub/Cipher and Nb.Sub/Cipher in different units under the Director General of Assam Rifles, Ministry of Home Affairs, Government of India.
4. It is stated that the petitioners were initially enrolled in Assam Rifles and are discharging their duties as Havildar/Cipher etc. in the pay scale of Rs. 3200-4900/-, which was as per the recommendation of the Fourth Pay Commission. The recommendation of the Fourth Pay Commission was notified by the Ministry of Finance, Government of India vide Notification dated 29th August, 1986.
5. The rank structure and the pay scales of Havildar/Cipher to which the petitioners belong, vide said notification dated 29th August, 1986, based on their technical qualification were fixed as under:-
Tech Class Rank Pay-Scales
CL - I S.I. Rs. 1400/-
CL - II A.S.I. Rs. 1320/-
CL - III Hav. Rs. 975/-
WP(C) No. 403 of 2014 Page 2 of 15
6. It is stated that the recommendation of the Fourth Pay Commission was not fully implemented in Assam Rifles and instead the Technical Staff under Cipher from all three classes viz. I, II and III were given the post and rank of Havildar with pay scale of Rs. 975/- only. Vide the Gazette Notification with regard to the Fifth Pay Commission, dated 10th October, 1997 issued by the Government of India, Ministry of Finance, all the technical ranks were re-designated and the pay scale were revised in all Para Military Forces. The rank and pay of Havildar, ASI and SI were given to the technical combatant staff, which is as under:-
Tech Class Rank Pay-Scales
CL - I S.I. Rs. 5500/-
CL - II A.S.I. Rs. 4000/-
CL - III Hav. Rs. 3200/-
7. The petitioners contended that despite such
recommendation of scale by the Fifty Pay Commission in respect of Central Para Military Forces, the same were not implemented in the case of Assam Rifle Technical Staffs, especially Cipher Categories Staff. The petitioners who belong to the signal and telecommunication wing were deprived from their legal rights to get equal pay for equal work. It is further stated that vide notification dated 10th October, 1997, the Government of India rationalized the rank structures and pay scales of non-gazette cadre of Assam Rifles, as follows, to which the petitioners belong:-
i) Constable/Security Assistant
ii) Head Constable
iii) Assistant Sub-Inspector
iv) Sub-Inspector/ACIO-II
v) Inspector/ACIO-I
vi) Subedar Major
WP(C) No. 403 of 2014 Page 3 of 15
Thus, pursuant to the declaration of the Fifth Pay Commission the rank structure and pay scale from the rank of Constable upto the rank of Subedar Major have been rationalized as stated above vide the Notification dated 10th October, 1997. The said notification was also forwarded to the Director General of Assam Rifles for necessary implementation. The pre-revised pay scales and replacement pay scales in respect of the above cadre is as follows:-
Sl. Rank Structure Rationalized pre- Replacement No. Revised pay scale Pay scale
-------------------------------------------------------------------------------------------
1. Constable/Security Rs. 950-1400 Rs. 3050-70-4590 Assistant
2. Head Constable Rs. 975-1600 Rs. 3200-85-4900
3. Assistant Rs. 1320-2040 Rs. 4000-100-6000 Sub-Inspector
4. Sub-Inspector/ Rs. 1640-2900 Rs. 5500-175-9000 ACIO-II
5. Inspector/ACIO-I Rs. 2000-3200 Rs. 6500-200-10500
6. Subedar Major Rs. 2000-3500 Rs. 6500-200-10500
8. It is stated that since certain doubts were expressed by the Central Armed Police Forces in fixation of pay of certain non-gazetted personnel of the Central Armed Police Forces w.e.f. 10th October, 1997, the Government of India, Ministry of Home Affairs clarified it vide office memorandum dated 22nd January, 1998 that the order dated 10th October, 1997 are equally applicable to all combatant categories.
9. Learned counsel for the petitioners contended that on the recommendation of the 4th Pay Central Pay Commission the Assam Rifles personnel had been granted revised pay and allowance entirely at par with other Central Armed Police Forces by Government of India but as the changes in the rank structure was not carried out in the Assam Rifles like other Central Armed Police Forces, there is an apparent WP(C) No. 403 of 2014 Page 4 of 15 disparity in the service conditions of certain category of personnel i.e. Havildar, Cipher etc.
10. Learned counsel for the petitioners also urged that a similar question was considered by a division bench of the Gauhati High Court in Writ Appeal No. 50 (SH) of 2010 titled as 'Savendra Singh Chauhan vs Union of India & Ors.' decided on 22nd September, 2011. The said appeal was allowed on 30th March, 2009 and the Union of India was directed to give appropriate rank and pay scale to the petitioner of the said petition as per recommendation of 5th Pay Commission and Office Memorandum dated 22nd January, 1998. Aggrieved by the said judgment, the respondents, Union of India preferred Special Leave to Appeal (Civil) CC 6241/2012 which was dismissed by the Hon‟ble Supreme Court on 02nd July, 2012.
11. While relying on the case of one Havildar/Cipher „Dushmanta Kumar Rout vs Union of India & Others', the petitioner in the said case who belonged to Cipher filed a writ petition being W.P. No. 200 (SH)/2008, which was allowed in his favour by directing the respondents therein to offer benefit of rank structure and pay as per recommendation of the 5th Pay Commission and pay as per recommendation of the 5th Pay Commission and Office Memorandum dated 22.01.1998 including the benefit of ACP per policy of the Government of India, learned counsel contended that on the same footing the petitioners are also entitled to the revised/upgraded pay scales, allowances and rank structure as recommended by the 5th Pay Commission. The respondents, Union of India preferred an appeal against the said judgement being Writ Appeal No. (SH) No. 51 of 2011 which was dismissed by a division bench of Gauhati High Court, Shillong Bench on 24th May, 2013.
WP(C) No. 403 of 2014 Page 5 of 15
12. Learned counsel for petitioners further contended that the forces like ITBP and CISF having implemented the revision of pay and rationalization of rank structure without any dispute, the petitioners are also entitled to the said benefit. It is further argued that once the recommendation of the Pay Commission is accepted, the same should be extended to all other similar situated personnel.
13. It is emphasized by the learned counsel for the petitioners that the relief granted by the Court be extended to other similarly situated employees and similarly situated employees should be treated similarly and not differently. The relief sought by the petitioners being similar to what had already been granted to the petitioner in W.P. No. 200 (SH)/2008 titled as 'Dushmanta Kumar Rout vs Union of India & Others'. However, the respondents are not extending the same benefits to the petitioners.
14. The petitions are opposed by the respondents and affidavit in opposition have been filed. Per contra, it is inter alia pleaded by the respondents that while implementing recommendation of 4th Pay Commission, the pay scale and rank structure were applied to Assam Rifles strictly as per Ministry of Finance Notification dated 22nd September, 1986 and while implementing rationalized pay scale and rank structure as per the Office Memorandum dated 10th October, 1997 issued by the Ministry of Home Affairs.
15. It is further stated that office Memorandum dated 22nd January, 1998 was not applicable in the case of the petitioners i.e. Havildar (Cipher) as there cannot be any parity between Radio Mechanics and Havildar (Cipher) because both the trades constitute distinct category of personnel and have altogether separate charter of duties, rank structure and functions.
WP(C) No. 403 of 2014 Page 6 of 15
16. Insofar as the Assured Career Progression was concerned, the same has already been extended to Havildar (Cipher) on their remusteration to Havildar (Cipher) as direct recruitment and grant 1st ACP/MACP after 12/10 years of service from the date of remusteration in consonance with implementation of the judgment in W.P. (C) No. 32624/2008 filed by Havildar (Cipher) Sentimon Mathew in Kerala High Court.
17. It is stated that the petitioners were enrolled in Assam Rifles as Rifleman (General Duty)/Rifleman (Operator, Radio & Line).
Thereafter, they remustered into Havildar (Cipher) in the higher pay scale of R. 975-25-1150-EB-30-1660/- per month as per Recruitment Rules published vide gazette of India Notification dated 31st May, 2000.
18. It further contended by the respondents that the petitioners have been correctly given the pay scale of Rs. 3200-4900/- as admissible to them as per the clarification vide office memorandum dated 22nd January, 1998. The said clarification has no relation with the category of Havildar (Cipher) to be granted rank of Assistant Sub Inspector with pay scale of Rs. 4000-6000/-. Besides, no parity can be drawn between Radio Mechanics and Havildar (Cipher) because both the trade constitute distinct category of personnel and have altogether separate charter of duties, rank structure and functions.
19. I have carefully considered the submissions made by learned counsel for both the parties and carefully gone through the material on record.
20. 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 WP(C) No. 403 of 2014 Page 7 of 15 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.
21. 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.
22. 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.
23. 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.
WP(C) No. 403 of 2014 Page 8 of 15
24. 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.
25. 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:-
"15. 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.
16. 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 WP(C) No. 403 of 2014 Page 9 of 15 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.
17. 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.
18. 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.
19. 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.
20. 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: WP(C) No. 403 of 2014 Page 10 of 15
"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."
21. 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.
22. 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."
26. 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 WP(C) No. 403 of 2014 Page 11 of 15 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.
27. 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.
28. 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 WP(C) No. 403 of 2014 Page 12 of 15 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.
29. 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.
30. 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 WP(C) No. 403 of 2014 Page 13 of 15 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.
31. 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 WP(C) No. 403 of 2014 Page 14 of 15 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.
32. 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.
33. No order as to cost.
JUDGE Dated, 23rd March, 2017 V. Lyndem WP(C) No. 403 of 2014 Page 15 of 15