Central Administrative Tribunal - Delhi
Arvind Kumar Yadav vs Union Of India on 15 July, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH : NEW DELHI
OA No.774/2013
Reserved on 25.02.2014
Pronounced on 15.07.2014
HONBLE SHRI SUDHIR KUMAR, MEMBER (A)
HONBLE SHRI RAJ VIR SHARMA, MEMBER (J)
Arvind Kumar Yadav
PIS No.24030024
ASI (FPB) in Delhi Police
Aged about 39 years
S/o Shri J.P.Yadav
R/o RZ/G-29, Sagarpur West,
New Delhi. Applicant.
(By Advocate: Shri Anil Singal)
Versus
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Lt.Governor of Delhi
Raj Niwas, Delhi.
3. Commissioner of Police,
PHQ, IP Estate, New Delhi. Respondents.
(By Advocate: Shri N.K.Singh for Mrs.Avnish Ahlawat)
ORDER
Per Mr.Sudhir Kumar, Member (A) The applicant of this case is working as an Assistant Sub Inspector in Finger Print Bureau (FPB in short) of Delhi Police, and has also passed the Finger Print Experts Examination held in the year 2006, and is before us with a prayer to declare his deployment to perform the duties of Finger Print Expert (FPE in short) as being illegal, arbitrary and unconstitutional, and praying for a direction upon the respondents not to detail him to perform the duties of FPE. The same prayer was also made as an interim prayer in the OA, seeking a direction to the respondents not to detail him to perform the duties of FPE, and also to the effect that he should not be forced to depose before any Court of law as FPE even in the cases in which he had already rendered his opinion as FPE.
2. These prayers of the applicant arise from his contention that as per the Manual of Finger Print System, only a Sub Inspector of Delhi Police can be termed as an Expert, while the applicant is only an ASI, but he is being forced to do all the work that have been assigned to be performed by a FPE, who cannot be an officer below the rank of Sub Inspector which is clear from the Charter of Duties and Responsibilities issued by Director, FPB, Delhi Police.
3. The applicant has also been claiming in the past in his representations to the respondents that since he is working as an Expert, he is entitled to get the pay scale of a Sub Inspector, but a similar claim of one of his colleagues was dismissed even by the judgment of the Honble Delhi High Court dated 12.03.2012, in W.P.(C) No. 1518/2011, holding that an ASI (FPB) is not entitled to the pay of SI (FPB) since he is not substantively holding the post of SI, nor even officiating on any such post of SI. The applicant had submitted a further representation to the Respondent No.3, against his taking work from him of an Expert, or praying to designate him to the status of an Expert, since he has to examine the finger print cases, and sign opinions as an Expert, and then also to depose before the Courts of law as an Expert, as per Section 45 of the Indian Evidence Act. His grievance is that still the respondents are forcing him to sign the expert opinions, and then depose before the Courts having criminal jurisdiction as an Expert, which, according to him, is contrary to the judgment of the Honble Delhi High Court, as well as against Clause (8) of the Manual for Finger Print System and Section 45 of the Indian Evidence Act. In paras 4.5 and 4.6 respectively of his OA, the applicant has cited the Clause (8) of the Manual for Finger Print System and Section 45 of the Indian Evidence Act.
4. He has also cited the case of another ASI (FPB) Harsh Vardhan Sharma, who had filed an OA No.3403/2009 before this Tribunal, claiming to get the pay scale of SI, since a person working as a FPE cannot be an officer of a rank lower than the SI, but that OA was dismissed on 10.12.2009 by this Tribunal, and a Writ Petition No.1518/2011 which had been filed against that judgment and order of this Tribunal was also dismissed by the Honble Delhi High Court on 12.03.2012, as already mentioned above. These very points have been again mentioned by the applicant in the grounds taken in the OA also, and he has taken a stand that either the respondents should not take the work of FPE from him, or he should be first promoted or ordered to officiate in the post of SI (Finger Print), for which he is fully eligible, having passed Finger Print Experts Examination held in the year 2006.
5. The respondents filed their counter reply on 01.04.2013. It was submitted that merely because the Punjab Finger Prints Manual applicable to Delhi Police prescribes that a person of the rank of SI should be appointed as an Expert in Finger Print Branch, it does not mean that Delhi Police also must designate the post of everyone working in its Finger Prints Bureau as SI (Finger Print). It was also submitted that in Delhi Police, ASI (FP) and SI (FP) are both considered as Experts, and their Recruitment Rules have also been framed accordingly. Initial appointment is made as ASI (FP), who are then promoted as SI (FP). Both ASIs (FP) and SIs(FP) act as Finger Print Experts, but under different ranks.
6. It was further submitted that in the case of State of W.B. and Another vs. T.K.Ghosh and Others [2005 (10) SCC 339], the Honble Apex Court has very categorically held that the employees, though discharging similar duties, but possessing different qualifications having a bearing on quality of work discharged, can be treated differently, and such differentiation is permissible, depending upon qualitative difference of work/duty performed. Further shelter was sought by the respondents behind the Honble Apex Courts judgment in the case of S.C. Chandra and Others vs. State of Jharkhand and Others, 2007 (8) SCC 279, in which it was held by the Honble Apex Court that for the purpose of deciding as to whether complete or wholesale identity exists between two groups of employees, it is well settled that only because the nature of work is the same, irrespective of their educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply, vide Government of West Bengal Vs.Tarun K. Roy & Ors.(2004)1 SCC 347.
7. Further shelter was sought by the respondents behind the Honble Delhi High Court judgment in Harsh Vardhan Sharma vs. Union of India & Others (supra) in which the Honble Delhi High Court had, while rejecting the claim of the petitioner seeking higher pay scale at par with SIs, upheld the logic of the Commissioner of Police that since investigations are carried out by the ASIs as well as SIs, and sometimes by Inspectors also, that does not mean that when an ASI conducts an investigation, he would be entitled to the higher pay scale of an SI or of an Inspector.
8. It was submitted by the respondents that the applicant had applied for the post of ASI (FP), and on his selection, he was offered appointment as such in Delhi Police, under Delhi Police Act, 1978, which appointment he had accepted, but now he claims that he should not be detailed to perform the duties of ASI of the FPB, which only means that he does not want to work on the post against which he had accepted his appointment, and he should resign and go, and there is no other position where he can work. It was further submitted that the contention of the applicant that since he has worked as a Finger Print Expert, as per the FPB Manual he is either entitled for promotion to the post of SI (Finger Print), or he should not be made to perform the work of an Expert in the FPB, is not tenable in view of the work distribution order dated 16.01.2008 passed in the FPB. It was further submitted that the ASIs (FP), who are recruited in Finger Print Cadre, are doing Finger Print related work in the Bureau like all other ranks, i.e. SIs (FP) and Inspectors (FP), and their post is the feeder post for promotion to these cadres, and, after three years on the job training, those ASIs(FP), who qualify the screening test conducted in the Delhi Finger Print Bureau, like other Bureau in other States in India, have to appear in the All India Board for Expert Examination conducted by the Central Finger Print Bureau, National Crime Record Bureau (MHA), R.K.Puram, New Delhi. After they qualify the Finger Print Examination, they are declared as certified Finger Print Expert, and are deployed for work pertaining to Finger Print Verification and matching manually or an AFPIS System, and later appear as an Expert Witness in the Courts of law.
9. It was further submitted that the applicant has given his representation dated NIL, which is still pending with the competent authority, and even without awaiting a decision on his representation, he has rushed to this Tribunal, and for this reason also, the OA was termed to be not maintainable, till his representation is decided. After giving detailed para-wise replies to the OA, it was reiterated that the work has been assigned to the applicant strictly as per the order dated 16.01.2008 issued in regard to the FPB, and that the stand of the respondents in this regard has been upheld by the Honble Delhi High Court in the matter of Harsh Vardhan Sharma vs. Union of India & Others (supra). It was, therefore, prayed that the OA is devoid of any merit, and is liable to be dismissed with costs.
10. The applicant filed a rejoinder on 25.07.2013, more or less reiterating his contentions as raised in the OA. It was submitted by him that as per the Punjab Police Finger Print Manual, the post of ASI is for Finger Print Searcher, which job is quite different from the job of Finger Print Expert, but in Delhi Police Finger Print Experts are being wrongly appointed in the rank of ASI. The applicant further submitted that he was ready to perform the work of Searcher, but not that of an Expert, who could be only an officer of the rank of SI. It was also submitted by him that the order dated 16.01.2008 is only a Charter of duties and responsibilities of SIs/ASIs (FPB) prepared by the Delhi Police, and, in fact, it is contrary to the judgment of the Delhi High Court dated 12.03.2012 in Harsh Vardhan Sharma vs. Union of India & Others (supra). It was further submitted by the applicant that his representation dated NIL was given on 06.08.2012, which had not been decided by the respondents till date, and when it was not decided by the respondents, he had correctly approached this Tribunal by filing the present OA. It was also submitted that merely because the applicant has passed the Finger Print Experts Examination does not make him an Expert under Clause (8) of Manual for Finger Print System and Section 45 of the Indian Evidence Act, since, otherwise, the Honble Delhi High Court would have allowed the Writ Petition No.1518/2011 filed by Harsh Vardhan Sharma (supra). Along with his rejoinder, a copy of the counter affidavit filed in the Delhi High Court on behalf the respondents in CWP No.4767/2003 in the matter of Chet Ram vs. Union of India & Others had also been filed as Annexure A-6, to buttress the applicants arguments that even the respondents are aware of and have stated so before the Honble High Court, about the correct legal position in this regard.
11. Heard. During the course of arguments, learned counsel for the applicant reiterated his contentions forcefully, and also relied upon the contents of the counter affidavit filed by the respondents before the Honble Delhi High Court in CWP No.4767/2003 in the matter of Chet Ram vs. Union of India & Others (supra), and heavily relied upon the contents of that affidavit, but without filing a copy of the judgment of the Delhi High Court, as must have been passed in that Civil Writ Petition. The learned counsel for the applicant extensively cited from the numerous paragraphs of that affidavit filed in September 2004 in the CWP No.4767/2003, and tried to bring out the distinction in between the posts and designations of ASI (FB) and SI (FB), and Searcher. The learned counsel for the respondents, on the other hand, argued on the lines of their Counter Affidavit, in quite detail.
12. We have given our anxious consideration to the facts of the case, and have carefully gone through the judgment delivered by the Honble Delhi High Court in WPC No.1518/2011 in Harsh Vardhan Sharma vs. Union of India & Others (supra). While upholding the order passed by this Tribunal on 10.02.2009 in OA No.3403/2009, the Honble High Delhi High Court had decided that Writ Petition by holding as follows:-
10. The only point raised by the learned counsel for the petitioner was that because the petitioner had been made to function as an Expert, therefore, he ought to be regarded as having functioned as a Sub-Inspector in the Finger Print Bureau. According to the learned counsel for the petitioner, the definition of Expert in the Punjab Finger Print Manual stipulated that an officer would be regarded as an Expert only if he was an officer an officer not lower than the rank of Sub-Inspector in the Finger Print Bureau. Since, according to the learned counsel, the petitioner had allegedly functioned as an Expert, therefore, he must be regarded as having discharged the duties of a Sub-Inspect (Finger Print). We feel that this argument is very convoluted. First of all, as we have already pointed out above, the petitioner cannot, even in the terms of the definition contained in the Punjab Finger Print Manual, be regarded as an Expert as he is not an officer of the rank of Sub-Inspector or above. Secondly, in Finger print Bureau itself, there are posts of ASIs as well as S.I.s. and he has not been made to officiate in any post of a Sub-Inspector. Thirdly, in any event, the petitioner had claimed a higher pay-scale, which, according to the Supreme Court decision, cannot be given to him even if he had been regarded as having officiated in the higher post of Sub-Inspector (Finger Print). We may also point out that we are in agreement with the logic adopted by the Commissioner of Police that investigations are carried out by the ASIs as well as SIs and sometimes by Inspectors also but that does not mean that when an ASI conducts an investigation, he would be entitled to the higher pay-scale of an SI or Inspector.
11. Consequently, we do not find any infirmity in the impugned order passed by the Tribunal whereby the petitioners Original Application was rejected. This writ petition is dismissed. There shall be no order as costs. (Emphasis supplied)
13. Learned counsel for the applicant had heavily relied upon the pleadings of WPC No.4767/2003 in the matter of Chet Ram vs. Union of India & Others (supra), and it is seen that that Writ Petition had ultimately been dismissed by the Honble Delhi High Court on 03.10.2008 as withdrawn, by passing the following orders but without laying down any law on the merits of the case:
Counsel appearing on behalf of the respondents has raised the preliminary objection to the maintainability of the present writ petition on the ground of jurisdiction stating that the service matters relating to officers of Delhi Police are to be heard and decided by the Central Administrative Tribunal, Principal Bench, New Delhi. This contention is not disputed by Mr. Awasthy, learned counsel appearing on behalf of the petitioner. Mr. Awasthy appearing on behalf of the petitioner requests that he may be permitted to withdraw the present writ petition with liberty to file an appropriate OA before the Central Administrative Tribunal, Principal Bench, New Delhi seeking appropriate reliefs with regard to the grievances made by the petitioner in the present writ petition. This writ petition is accordingly dismissed as withdrawn reserving the liberty as prayed for.
14. In this context, we may beneficially reproduce here the following paragraphs from the Honble Apex Courts judgment in the case of S.C. Chandra and Others vs. State of Jharkhand and Others (supra), which have dealt with the issue of equal pay for equal work, as applicable to the case before us:
26. Fixation of pay scale is a delicate mechanism which requires various considerations including financial capacity, responsibility, educational qualification, mode of appointment, etc. and it has a cascading effect. Hence, in subsequent decisions of this Court the principle of equal pay for equal work has been considerably watered down, and it has hardly ever been applied by this Court in recent years.
27. Thus, in State of Haryana vs. Tilak Raj (2003) 6 SCC 123, it was held that the principle can only apply if there is complete and wholesale identity between the two groups. Even if the employees in the two groups are doing identical work they cannot be granted equal pay if there is no complete and wholesale identity, e.g., a daily rated employee may be doing the same work as a regular employee, yet he cannot be granted the same pay scale. Similarly, two groups of employees may be doing the same work, yet they may be given different pay scales if the educational qualifications are different. Also, pay scale can be different if the nature of jobs, responsibilities, experience, method of recruitment, etc. are different.
28. In State of Haryana and others vs. Charanjit Singh and others (2006) 9 SCC 321, discussing a large number of earlier decisions it was held by a three-Judge Bench of this Court that the principle of equal pay for equal work cannot apply unless there is complete and wholesale identity between the two groups. Moreover, even for finding out whether there is complete and wholesale identity, the proper forum is an expert body and not the writ court, as this requires extensive evidence. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence in recent decisions the Supreme Court has considerably watered down the principle of equal pay for equal work and this principle has hardly been ever applied in recent decisions.
29. In State of Haryana & another vs. Tilak Raj & others (2003) 6 SCC 123, the Supreme Court considered the doctrine of equal pay for equal work in the context of daily wagers of the Haryana Roadways. After taking note of a series of earlier decisions the Supreme Court observed:
"A scale of pay is attached to a definite post and in case of a daily wager, he holds no post. The respondent workers cannot be held to hold any posts to claim even any comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances. To claim a relief on the basis of equality, it is for the claimants to substantiate a clear cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-`-vis an alleged discrimination. No material was placed before the High Court as to the nature of duties of either categories and it is not possible to hold that the principle of 'equal pay for equal work' is an abstract one.
'Equal pay for equal work' 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. The problem about equal pay cannot always be translated into a mathematical formula".
(Emphasis supplied)
30. In State of U.P. and others vs. Ministerial Karamchari Sangh, AIR 1998 SC 303, the Supreme Court observed that even if persons holding the same post are performing similar work but if the mode of recruitment, qualification, promotion etc. are different it would be sufficient for fixing different pay scale. Where the mode of recruitment, qualification and promotion are totally different in the two categories of posts, there cannot be any application of the principle of equal pay for equal work.
31. In State of Haryana vs. Jasmer Singh and others AIR 1997 SC 1788, the Supreme Court observed that the principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work of different persons in different organizations. Persons doing the same work may have different degrees of responsibilities, reliabilities and confidentialities, and this would be sufficient for a valid differentiation. The judgment of the administrative authorities concerning the responsibilities, which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally was not open to interference by the court.
32. In Federation of All India Customs and Excise Stenographers (Recognized) and others vs. Union of India and others AIR 1988 SC 1291, this Court observed:
"In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis. The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less, it varies from nature and culture of employment. The problem about equal pay cannot always be translated into a mathematical formula".
33. It may be mentioned that granting pay scales is a purely executive function and hence the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities. Hence, the Court should exercise judicial restraint and not interfere in such executive function vide Indian Drugs & Pharmaceuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408.
34 xxxxxx(Not reproduced here)
35. In our opinion fixing pay scales by Courts by applying the principle of equal pay for equal work upsets the high Constitutional principle of separation of powers between the three organs of the State. Realizing this, this Court has in recent years avoided applying the principle of equal pay for equal work, unless there is complete and wholesale identity between the two groups (and there too the matter should be sent for examination by an expert committee appointed by the Government instead of the Court itself granting higher pay).
36. It is well settled by the Supreme Court that only because the nature of work is the same, irrespective of educational qualification, mode of appointment, experience and other relevant factors, the principle of equal pay for equal work cannot apply vide Government of West Bengal vs. Tarun K. Roy and others (2004) 1 SCC 347. (Emphasis supplied)
15. In the case of State of W.B. and Another vs. T.K.Ghosh and Others (supra), the Honble Apex Court has held as follows :-
9. So far as proposition of law is concerned, there cannot be nor is there any dispute that one would be entitled to equal pay for equal work but that alone is not and cannot be the sole criterion much less where it has also not been established that all the persons of the Subordinate Engineering Services constitute one class of draftsmen performing identical nature of duties even though there may be similar nature of work yet distinction is permissible based upon their educational qualifications. In support of this proposition the learned counsel for the appellants has placed reliance upon a decision of this Court in Govt. of W.B. v. Tarun K. Roy((2004) 1 SCC 347 : 2004 SCC (L&S) 225) more particularly the observations made in paragraph 14 which are as follows: (SCC p. 355) "14. Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently."
The observation of the proposition in law in the above case is clear that persons having different qualifications though performing similar job can be treated differently.
10. The other case which has been relied upon is Shyam Babu Verma v. Union of India ((1994) 2 SCC 521 : 1994 SCC (L&S) 683 : (1994) 27 ATC 121), a reference is more particularly made to the observations of the Court in paragraphs 8 and 9 of the judgment as follows: (SCC pp. 524-25) It has been clearly held that it is always open to the State Government to put its employees in the same service in different categories for the purpose of the scale of pay according to the qualifications possessed by them.
11. The learned counsel for the respondents tried to distinguish the case on facts but so far as the principle enunciated is concerned, it is quite clear. Yet another decision State of M.P. v. Pramod Bhartiya((1993) 1 SCC 539 : 1993 SCC (L&S) 221 : (1993) 23 ATC 657) referred to by the learned counsel for the respondents, also holds that such a distinction is permissible depending upon the qualitative difference of the work/duties which are performed by the employees. There is, therefore, no manner of doubt that the educational qualifications may be considered as a valid basis for categorizing the employees though discharging similar duties, but possessing different qualifications having bearing on quality of work discharged. As we have already observed, in the case in hand, it could not be established, though so observed by the High Court, that different categories of draftsmen performed identical nature of duties much less of the same quality the fact that there are different nature of duties, is also established by the averments made in the writ petition itself as referred to in the earlier part of this judgment. Otherwise also it stands to reason that where more than one class of employees are designated as draftsmen, having qualifications ranging from overseers to nil technical qualification or only experience, the duties of higher responsibilities requiring more efficient handling would obviously be assigned to the persons having better and higher technical qualifications rather than to those who have no qualification or have mere experience or some other certificate plus experience. The purpose seemed to be to provide and assign different kinds of duties to different category of officials in the same class based on their qualification.
16. We are in respectful agreement with, and bound by the above cited judgments of the Honble Apex Court, and by the judgment of the Honble Delhi High Court passed in WPC No.1518/2011 in Harsh Vardhan Sharma vs. Union of India & Others (supra) that when the finger print investigations are carried out by the ASIs, as well as SIs, and sometimes by Inspectors also, that does not mean that when an ASI conducts an investigation, he would be entitled to higher pay scale of an SI, or Inspector. Here, as is clear from the averments made by both sides, similar type of work is being performed by ASI(FPB), SI (FPB) and Inspector (FPB) also. Therefore, when a person who has actually performed the work of preparing the AFPIS, FP Search Report, and the AFPIS, Finger Print Slip, samples of which have been produced by the applicant himself at pages 22 to 24 of his OA, it cannot be held by us that those ASIs, who have actually performed the duties of FPE, should not be asked to depose before the Courts of law, as has been prayed for by the applicant as an interim prayer in Para 9 of the OA, and to declare the performance of such work done by him as illegal, arbitrary and unconstitutional, as has been prayed for by the applicant in Para-8 (1) of the relief portion of this OA, as cited above. When the applicant has performed the work of search and comparison of Finger Prints, and has actually performed the work, and has prepared the F.P. Slip and the FP Search Report, which is countersigned by the Director concerned of the FPB for production before the Courts of law, it is very right and proper that that person alone should be treated as the relevant Finger Print Expert for deposing before the Courts of law. The distinction between the designations of FP Searcher and FP Expert has become irrelevant, in view of the similar type of work being performed by the three ranks of ASIs (FP), SIs (FP) and Inspectors (FP), but only the reliability of their individual performance may vary, as has been held by the Honble Apex Court in State of Haryana vs. Jasmer Singh & Others (supra), as also by the Honble Delhi High Court in its order dated 12.03.2011 as reproduced above. Therefore, we find no merit in the OA, and the same is dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar)
Member (J) Member (A)
/kdr/