Bombay High Court
Union Of India & Ors vs All India Salt Department ... on 9 April, 2018
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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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)
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:
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Designation Pay Scale
Rs. No. of Posts
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
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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.
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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.
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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