G.K.K. Pillai And Ors. vs Union Of India (Uoi) And Anr.
2002 Latest Caselaw 255 Del

JUDGMENT

Vijender Jain, J.

1. Rule.

2. The present petition has been filed by the Assistant Sub-Inspectors (Radio Operators/Ciphers/Radio Mechanics) working in the Border Security Force. Dr. Shyamala Pappu, learned senior counsel for the petitioners has contended that as there were anomies in the existing rank structure and pay scales of various cadres in the Central Police Organisations including the Border Security Force, the matter was referred to 5th Pay Commission. The 5th pay Commission after considering the anomalies in the rank structure and pay scale of the Central Police Organisations recommended parity among the employees of different Central Police Organisations in respect of rank structure, pay scale and other service conditions.

3. The Government of India, Ministry of Finance vide its letter dated 30th September, 1997 duly notified in the Gazette of India, after careful considerations of the recommendation of the 5th pay Commission which inter alia contained Clause 7 to the following effect:

"In respect of personnel of Central Police Organisations, in the rank from Constable to Subedar Major, Ministry of Home Affairs will carry out an exercise for rationalisations of ranks so as to achieve parity with Delhi Police, pending which the scales recommended by the Fifth CPC will be applied."

4. In the said annexure containing part A, inter alia, reflected the existing scales of pay grades and the revised scales of pay was also notified. I need not go into the other scales of pay and grades. Suffice it would be to quote the relevant scale of pay which are relevant for adjudication of the matter as under :-

  
 Existing Scales of  Grades  Revised Scales of 
pay    pay 
----------------------------------------------
1200-30-1440-30-1800  S-7  4000-100-6000
1200-30-1560-40-2040
1320-30-1560-40-2040

1350-30-1440-40-1800-  S-8  5000-150-8000
50-2200
1400-40-1800-50-2300

1400-40-1600-50-2300-  S-9  5000-150-8000
60-2600
1600-50-2600-75-2660
 

5. It is the contention of the petitioner that although the Government rationalised the rank structure and pay scale of Central Police Organisations at par with Delhi Police, however, the petitions who are ASI in the communication wing of the Border Security Force (BSF) have not been accorded the benefits accrued to them because of the aforesaid rationalisation and the petitioner are receiving lesser pay scale than that of Delhi Police Assistant Sub-Inspector performing the same duties.

Counsel for the petitioner relied upon Annexure 4 which is at page 48 of the paper-book, which is a statement regarding revised pay pay scale in respect of officers of Delhi Police. The same is as follows :

S.No. Rank Pre revises Revised scale pay scale

--------------------------------------------------

7. ASI (Wireless 1600-50-2300-EB- 5000-150-

 operator. Radio 60-2060    8000
  Technician)
 

6. It was contended before me that the Director General, Border Security Force itself recommended the case of ASI working under the BSF as operator/Ciphers/radio mechanics for getting the grade of Rs. 5000-150-8000 in the said recommendation. The additional points which were recommended by the BSF to the Central Government highlighted the fact that as the Government has recommended the pay scale of Central police Organisations at par with Delhi Police, the promotion avenue in the BSF personnel remains in the rank of ASIs for about more than 10 years and, therefore, the ASIs in BSF will be benefited even if the special pay is not given and finally at page 54 of the paper-book it was recommended that the ASIs serving in the BSF should be given the grade of Rs. 5000-150-8000 so as to bring the ASIs working in the BSF on parity with the pay scale of the ASIs working in Delhi Police as radio mechanics.

7. It was contended by counsel for the petitioners that in view of the gazette notifications issued by the Government of India as reproduced above, there is no reason why the petitioner be discriminated and the revised pay scale of Rs. 5000-150-8000 be not given to the petitioner when the same grade is given to the Assistant Sub-Inspector/Radio Operators performing the same duties.

8. On the other hand, Mr. Keshav Dayal, learned senior counsel for the respondents has contended that the respondents have brought parity to the extent as mentioned in the Ministry of Home Affairs order dated 10.10.1997. It was contended that in view of 5th pay Commission report the pay scale of head constable/radio mechanics have been merged with ASI/RM and all posts of head constable in radio mechanics cadre were re-designated as ASI. The second limb of arguments advanced by Mr. Dayal was that the claim of ASI (Opr) for pay scale of Rs. 5000-8000 which is the pay scale of ASI (Wireless operator) in Delhi Police, cannot be given to the petitioners as there is no direct entry in the rank of Assistant Sub-Inspector (wireless operator) in BSF and secondly no comparison can be made between direct recruit of Delhi Police with the promoted Assistant Sub-Inspector (Operators) of BSF who are initially appointed as head constables. An effort was made by learned counsel for the respondent to argue that the qualification for the post of ASI (Operator)/Radio Mechanics in BSF is different than educational qualification required for ASI/Radio operator in Delhi Police. In support of his arguments, learned counsel for the respondent has cited Federation of All Indian Customs & Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors. . On the basis of the aforesaid authority, it was contended before me that the functions may be the same but the responsibility makes a difference and that difference is a matter of degree and that is the element of value judgment which is in the domain of the executive and the Court should not interfere in the said domain.

9. Learned counsel for the respondent also cited Sita Devi and Ors. etc. v. State of Haryana and Ors. . In support of his submission Mr. Dayal has also cited Garhwal Jal Sansthan Karmachari Union and Anr. v. State of Uttar Pradesh and Ors. and on the basis of the aforesaid authorities, he contended that the duties performed by the ASI of Delhi Police was qualitatively different than performed by ASI/Radio operators of the Border Security Force. Mr. Dayal in support of his arguments has further relied upon State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors. as well as Randhir Singh v. Union of India and Ors. .

10. It was further contended by Mr. Dayal that the petitioners were not entitled to get the pay scale of Rs. 5000-15-8000 in view of the fact that they were given replacement scale of Rs. 4000-100-6000, which was applicable to Delhi Police Assistant Sub-Inspector (Executive), who were drawing the pay scale of Rs. 1320-2040 (pre revised) which was similar to Border Security Force Assistant Sub-Inspector.

11. I have given my careful consideration to the arguments advanced by learned counsel for the parities. At the outset it must be borne in mind that Director General of Border Security Force itself has recommended for grant of pay scale of Rs. 5000-150-8000 to the Assistant Sub-Inspector working in BSF as radio operators as per page 54 of the paper-book. Based on the report of the Deputy Director, a note dated 23.10.1997 was sent to the Head quarter of BSF. The Inspector General of BSF on 23.10.1997 issued a circular dated 23.10.1997 (which is at page 56 of the paper-book) and in the said circular in para 6 request was forwarded to the Ministry of Home Affairs which is reproduced below:

"ASI(RO)/Cipher: The posts exist in Delhi Police also for which the revised scale of Rs. 5000-150-8000 has been approved. It is suggested that ASIs (RO/ Cipher in BSF also should placed in the same scale."

12. As a matter of fact why this anomaly remained can be seen form the reference made to the Ministry of Home Affairs by the Director General, BSF as the order issued on 10.10.1997 revising the rank structure and pay scale of non-gazette staff of Central Police Organisations covered only executive staff which means that an ASI (Executive) working in Delhi police and Assistant Sub-Inspector working in BSF who were not performing the duties of radio technicians or cipher were not brought under the said circular. Although in principle it was agreed by the Central Government on the basis of the recommendations of 5th pay Commission that the rank structure and the pay scale of all non-gazetted Central Police Organisations officers vis-a-vis the pay scale of Delhi police has to be rationalised. Although, Mr. Dayal tried to distinguish the case of the petitioners by taking the plea that the essential requirements or the eligibility criterion in the case of ASI (R) working in the BSF and Delhi Police are different, the nature of duties and the responsibilities performed by the two are different. This argument, I will deal later.

13. From the perusal of Annexure Part A of the notification issued by the Government of India on 30th September, 1997 in relation to categories mentioned at Serial Nos. 7, 8 and 9, which has been reproduced above, the revised pay scale are (i) Rs. 4000-100-6000, (ii) Rs. 4500-125-7000 and (iii) Rs. 5000-150-8000, the Sub-Inspector (Radio) working in the BSF as well as Inspectors Radio mechanics working in the BSF have been given the pay scale of Rs. 5500-175-9000 and Rs. 6500-200-10500, the same pay scale which has been given to the Sub-inspector and Inspector Radio mechanics in Delhi Police. ASI is the feeder service form which Sub-Inspector and Inspector are promoted, if Sub-Inspector and Inspector who are promoted from Assistant Sub-Inspector are eligible and given the same pay scale which Sub-inspector and Inspector are working in Delhi Police are getting, then there is no basis or rationality in denying the same to the petitioners.

14. It was contended before me that the nature of duties as well as qualifications for ASIs (R) working in BSF and Delhi Police are different. During the cause of arguments, a comparative chart, inter alia, requiring the academic qualifications and nature of duties of ASI (RO) of BSF and Delhi Police was filed. It makes an interesting reading. As a matter of fact, it falsifies the stand of the respondent. While taking into consideration, the comparative chart and the educational qualifications at the entry level in BSF for head constable (RO), the qualification are matriculate or equivalent plus two years ITI certificate in radio and TV/electronics or intermediate or 10 + 2 equivalent with physics, Chemistry and Maths form a recognised board of education, whereas in Delhi Police the ASI can be appointed by direct recruitment only on the basis of (a) matriculation, (b) second class certificate of competency as Wireless Operator issued by the Ministry of Transport and Communications or having passed Grade-II proficiency test of wireless operator conducted/approved by the DCPW (Directorate of Coordinations of Police Wireless), (c) two years practical experience in the actual operation of radio sets, preferable the VHF, in Civil Aviation, P & T Deptt. Rlys. or any Govt. agency.

15. From the bare perusal of the comparative chart filed by the respondents, the requirement for entry into the basic level of head constable operator in the BSF is matriculate or equivalent plus two years ITI certificate in radio and TV/electronics or intermediate or 10 + 2 or equivalent with Physics, Chemistry and Maths form a recognised Board or Institution and if the person has to be promoted to ASI, he must have minimum five years of service as head constable operator. He has to undergo a training of map reading. He has to further undergo a pre-promotion qualification required for ASI operator i.e. upgradations operation cause t be passed.

16. Why I have highlighted this is to show that the BSF itself has recommended as I have discussed above that the ASI (wireless operator) be granted the same pay scale as has been given to the ASI (Wireless operator) of Delhi Police. By filing this comparative statement it was sought to be argued that eh essential qualification which was required was different than that of the BSF. A comparative chart of the duties of ASI/RO, BSF as well as ASI Radio Operator, Delhi Police was also filed, which also makes a very interesting reading. The same is given below :

Academic Qualifications/Duties:

1. Entry level qualifications Name of the post-Wireless for Head Constable (operator) Operator ASI/SI Matri or equivalent plus two Whether selection post years ITI certificate in Or non selection post Radio and TV/Electronics or Intermediate or 10+2 or None selection if the post Equivalent with Physics, is filled by promotion and Chemistry and Maths form a post applications when the recognised Board of post is filled-up through Education. direct recruitment 2 a) Further pre-promotion a) Matriculation or qualification required for equivalent ASI (Operator) upgradation b) Second class certificate Operator courses to be of competency as wireless passed. Opr, issued by the Min of transport and Communication

b) Map Reading Standard-Ist or having passed Grade-II, proficiency test of Wireless

c) Minimum 5 years of service Operator conducted/approved as Head Constable (Operator) by the DCWP

c) 2 Yrs practical experience in the actual operator of radio sets, preferable the VHF, in civil Aviation, P&T Deptt. Rlys.

    or any Govt. Agency
3. Charter of Duties of  Charter of Duties of ASI/ 
ASI(RO) BSF     OPR Delhi Police 
 Static Locations
a) BSF ASI (opr) have to i) To provide security and
perform duties in various safety of the VIP/VVIPs. He
nature of deployment  has to provide `Action 
countrywide as following Oriented operational
    communication with the best 
i) Ensure efficient and rapid  possible Response time,. 
handling of traffic in the 
signal centre during his  ii) The ASI/SI is 
tenure of duty.   responsible for the 
    communication of main net 
ii) Be alert and fully   for which he is deployed. 
prepared-to take decisions.  He should control and 
    maintain efficient 
iii) Be competent and in a  communication and net 
position to assist and advise  discipline. 
the staff working in the 
Signal Centre.    iii) He is responsible for 
    the communication from, to
iv) Responsible for   and between all the stations 
re-distribution of personnel of the net.
as necessary to over come
bottle-necks and   iv) He is responsible to 
re-adjustment within the  operate Automax 
shift to ensure equal load on  communication system by
all personnel.    which all the messages
    pertaining to other states
v) Responsible for proper are cleared directly.
layout and maintenance of the
Centre.    v) He should perform cent
    per cent security
vi) Ensure over all  communication.
cleanliness in and around the 
Signal Centre.
    vi) He has to help the local
    police for maintaining law
vii) Ensure serviceability of and order. 
stand by generators lead from
generator to signal centre.  vii) He has to perform the
    duty as duty officer of the
    Control Room who is
viii) In the event of a  responsible of entire
circuit breakdown, he is communication of the
responsible to trace the particular district and to
fault and its source, and to keep inform all the senior
find out what progress is officers with all the
being made towards its  information/happening in the
restoration and info O I/C district during his duty.
regularly.
ix) He is responsible to viii) He is also responsible
order for opening of  to initiate the demand of 
alternative circuits, in the extra force required at the 
event of a circuit break  time of any big incident 
down. 
x) He will ensure that the  ix) The wireless opr 
stand-by equipment is always (ASI/SI) is being put on 
kept in working order and  duty as line officer as well
ready for use.    as motor transport officers.
xi) He will ensure that  x) He has to take decision
maintenance and routine  at his own when the VVIPs
testing of all equipment in  change the route and secrecy 
Signal Centre is carried out  in communication has to be 
during his shift.   provided accordingly.
xii) In the event of serious  
break-down, he will report  xi) He has to block the 
the same to the O I/C looking  route and implement 
after the Signal Centre.  conveyance plan and organise 
    a chase by PCR vans to
    apprehend the get away 
xiii) Expeditious clearance  vehicles and criminals. 
of traffic will be his 
primary concern. This   xii) He is the in charge of 
involves :-    general communication and 
    operational  comn in the 
xiv) Speedy restoration of sub-division. 
fault circuits 
    xiii) He is responsible for 
xv) Use of alternate routing efficient and effective
and stand by circuits in the static mobile. 
circuit.    xiv) He will always remain
    in touch with the Addl DCsP 
xvi) On the job supervision-  and ACP/headquarters for all
    matters the Distt. required 
xvii) Anticipation of the  for immediate action. 
state of comn and taking  
necessary steps well in 
advance to cope up with  xv) He is responsible for 
changing conditions   discipline of the staff 
    deployed on duty in Sub 
xviii) On the job training  control room, maintain the 
will be organized to improve  logs/records properly and 
technical ability of   their safety. 
personnel employed in Signal 
Centre 
    xvi) He is responsible to 
    operate simultaneous 
xix) Responsible for   broadcasts system to convey 
maintaining close liaison  information to all district 
with the staff of the other  nets, traffic net. Patrol 
Signal Centres and DOT staff  van nets and motor cycle 
at appropriate levels.   net./wireless integrated PA 
    system. 
xx) Maintaining all records  xvii) He is responsible to 
required in the Signal   check/inspect the 
Centre.    communication of all the 
    stations under this sub 
xxi) Suitable instructions to  divisions. 
Signal Centre personnel given  
to intimate him about   xviii) He is also 
messages indicating an   responsible for imparting 
impending move of units or  training to Asstt wireless 
officers with which the  Operators and 7 
Frontier is concerned   Constable/Head Consts of 
    executive police. 
xxii) ADSO must know the 
location of units and HQ to 
which signal centre provides 
Comns.  

xxiii) The state of all 
channels of Comns i.e. 
Automax, BEST, CW HF Net and 
VHF Net terminating in the 
Signal Centre 
xxiv) Projected move of HQ or
units with which signal 
centre is in Comn, and 
projected changes in Comns.

xxv) Safe custody of 
classified documents

xxvi) Security training of
personnel employed in the Signal Centre

xxvii) Maintenance of Comn state board

xxviii) Briefing/debriefing 
of runners  clearing the 
signal 

xxix) Supervision of buring 
of traffic/ extra copies/ 
carbon copies

xxx) Location of IG & VIPs if 
in station 

xxxi) Personal supervision in
clearance of FLASH/ EMERGENCY
Messages/ SITREPS

xxxii) Periodically 
scrutinize the traffic to 
minimize service traffic and 
curtail higher precedence messages

xxxiii) Handing/taking over 
of classified documents in 
Signal Centre at the time of 
change over of shifts

xxxiv) Administration and 
management of shift personnel

(b) Deployed Battalions

i) BSF is performing the 
duties on the border of India 
in various terrain like Kutch 
- Ran of Gujarat, desert of 
Rajasthan, snow bound hilly 
and tough area of Kashmir, 
highly touch and difficult 
area of Tripura, Manipur and 
Cachhar.

ii) ASI(RO) of BSF is 
performing the duties on 
above mentioned Border round
the clock to provide Comn. 
from border out posts to HQ.

iii) He is dealing with Top 
Secret Cipher documents at 
the BOP and handling the 
classified messages

iv) On the border where there 
is no provision of 
electricity, BSF Radio Opr is 
responsible for charging 
batteries by the charging 
engines to smooth communication.

v) He is laying out/ 
maintaining the telephone 
lines.

vi) He is performing the 
duties with Ops column on .
long route patrolling in 
various terrain

vii) An ASI (RO) while 
deployed on border, has to 
perform the duties of Cipher, 
Radio Mechanic and Engine 
Fitter, in addition to his 
own duties.

viii) He is away from his 
children/family most of the 
time during his service 
period due to various 
unfavorable conditions.

c) INTERNAL SECURITY DUTTIES

i) ASI (RO) of BSF is 
performing the duties of
wireless operator to proving
Comn.

ii) He is deployed with the
troops on anti-militancy 
duty, election duty, border 
duties to perform forward and 
rear comn coverage.

iii) He is responsible for
maintaining batteries,
charging engines, telephone
lines, telephone exchange and 
Ciper documents for 
encryption/decryption of 
classified messages.
 

17. Taking into consideration the duties as filed by the respondent, the duties and functions of ASI/RO, BSF are far more onerous in comparison to the duties performed by ASI, Operator, Delhi Police. From the bare perusal of the chart given by the respondent, the degree of skill, experience, training, responsibility, strain, fatigue, risk, confidentiality undertaken and physical requirement are factors which are to be borne in mind. The authorities cited by learned counsel for the respondent of Federation of All India Customs & Central Excise Stenographers (Recognised) & Others (supra) lays down that the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service and so long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. In the case before hand, the value judgment of the respondent, if based on the conditions set out by Supreme Court then this Court would be reluctant in interfering with the said value judgment. But in the case before hand after taking a decision that a parity in pay scale has to be maintained in terms of structure as well as scales of all non-gazetted officers working in the BSF along with Delhi Police, non-allowing the same pay scale to ASIs (R), BSF with those of the ASIs of Delhi Police, the value judgment is totally irrational and based on no basis. The case of Sita Devi & Others (supra), cited by learned counsel for the respondent is not applicable to the present case. In Sita Devi's case, the Supreme Court held that the grievance made by the petitioner was not acceptable as the petitioners who were non-matriculate instructors in adult literacy programme wanted to have a parity with those who were matriculate. Similarly the authority cited by learned counsel for the respondent of Garhwal Jal Sansthan Karmachari Union (supra) was based on qualitative difference in duties on the ground that employees working in Jal Nigam and Jal Nigam having wider jurisdiction while the Garhwal Jal Sansthan was exercising jurisdiction only on local bodies.

18. Here I may recall Randhir Singh's case (supra). Chinnappa Reddy, J. speaking for the bench said :

"We concede that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them very, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same."

19. I do not find any force in the arguments of counsel for the respondents that petitioners have failed to discharge the burden of establishing their right to equal pay on the person claiming the same as per the decision of State of Madhya Pradesh and Anr. v. Pramod Bhartiya (supra). As a matter of fact, in view of the recommendations of the BSF that the petitioners were performing the same duties as that of ASI/Radio Operators in Delhi Police and in view of the recommendations made by the BSF to the Central Government that the petitioners were entitled to the revised pay scale of Rs. 5000-8000, there was no question of discharging onus by the petitioners. After the comparative statement has been filed by the respondents, the duties, responsibilities functions are nearly the same which are performed by ASI/operators BSF. Equal pay for equal work is implicit in the doctrine of equality enshrined in Article 14 of the Constitution of India and if cause of action relating to the pay scale is based on irrationality and unreasonableness, Article 14 comes into play. In view of the records placed regarding the responsibilities, duties and functions, same being similar in nature, the non-grant of similar pay scale as that of Delhi Police is irrational and without any basis. Net result is respondents are directed to bring parity in respect of pay scale of the personnel of Communication with (ASIs) of BSF with the communication wing (ASIs) of Delhi Police by granting the same pay scale of Rs. 5000-150-8000 to the petitioners w.e.f. the date it has been granted to the ASIs, wireless, Radio operators, technicians in Delhi Police. Arrears of difference be paid within a period of three months from the date of order.

20. Rule is made absolute. Petition stands disposed of.