Union Of India (Uoi) And Anr. vs Shri G.K.K. Pillai And Ors.
2005 Latest Caselaw 1795 Del

JUDGMENT

Markandeya Katju, C.J.

1. This writ appeal has been filed against the impugned judgment of the learned Single Judge dated 19.2.2002. Heard counsel for the parties and perused therecord.

2. The facts have been set out in the judgment of the learned Single Judge andhence we are not repeating the same except where necessary.

3. The prayer in the writ petition was to bring about parity in respect of personnel of the Communication Wing of the BSF with the personnel of the Communication Wing of Delhi Police by granting the same pay scale to the former which are admissible to a latter, and to bring about parity in respect of rank structure in accordance with their scales. It has prayed that the respondents be directed to grant the pay scale of Rs. 5000-150-8000 to the petitioners w.e.f the date it has been granted to the ASI (Wireless Operators/Radio Technicians) in Delhi Police along with arrears and interest.

4. The petitioners are working as ASI/radio operators with the BSF. It is alleged in para 2 of the writ petition that there are serious anomalies in the rank structure of police organizations including the BSF resulting in various types of discrimination in the pay scales etc. The matter was referred to the Fifth Pay Commission, and the Commission on consideration of all the relevant aspects recommended that there should be parity among all the employees in respect of rank structure and pay scales and other service conditions.

5. It is alleged in para 3 of the writ petition that the aforesaid recommendations of the Pay Commission were accepted by the Government in principle. Steps were taken to bring about the parity as recommended by the Fifth Pay Commission. True copy of the decision of the Government dated10.10.1997 in this connection is annexure I to the writ petition.

6. A perusal of the decision of the Central Government dated 10.10.1997 shows that the Government had only accepted rationalization of rank structure and payscales of Non-gazetted cadres of Central Police Organisations.

7. It is alleged in para 4 of the writ petition that subsequent to the aforesaid decision of the Government parity between various Police Organisations was ensured by streamlining the rank structure and granting similar pay in all the Police Organisations. True copy of the order in this connection is annexure-2 to the writ petition.

8. It is alleged in para 6 of the writ petition that there is a disparity in the rank structure as well as pay scales applicable to the various cadres in the Communication Wing of the BSF qua the Communication Wing of other police organizations specially the Delhi Police. It is alleged that pay scales of ASI is of Communication Wing in the BSF has been fixed at a much lower stage than that of ASI Wireless Operators/Radio Technicians in the Delhi Police.

9. Hence representation were made by the petitioner and other affected personnel for granting pay parity. The Deputy Director (Communication) on consideration of all the relevant aspect recommended that there should be parity videannexure-5. To the same effect was the recommendation of the Inspector General(Communication) vide annexure6. However, it is alleged that the recommendation was shelved somewhere and no action was taken on the same and no steps weretaken to abolish the discrimination against the petitioners. True copy of petitioner's representation in this connection is annexure ?8 to the writ petition. True copy of a legal notice is annexure ?9 to the writ petition. When all efforts failed, this petition is filed in this Court.

10. Counter affidavit was filed by the UOI and we have perused the same. It is denied that there were anomalies in the rank structure of BSF Non-Gazetted Personnel. It is alleged that the BSF was raised in December, 1965 on the pattern of the Indian Army with a view to promote a sense of security among the border population, to prevent crimes, smuggling, to perform Internal Security Duties and to assist the Army both in peace and war and also to guard International Borders. It is alleged that in order to rationalize the rank structure of BSF Non-Gazetted staff with Delhi Police an order dated 10.10.1997was issued. Subsequently signals dated 27.10.97 and 11.2.98 were issued formerger of Naik as Head Constable and Head Constable as ASI. The parity in the rank structure was applicable for the posts as mentioned in order dated10.10.1997 and generalized parity in rank structure was not sanctioned. Hence, it is alleged that the allegations in para 2 of the writ petition have no merit.

11. It is alleged in para 6 to 8 of the counter affidavit that there are and number of pay scales of ASIs in Delhi Police as per their trade and qualification. There were several representations which were considered by the Competent Authority and a consolidated signal dated 12.3.1998 was issued to all the establishments for information of the concerned persons regarding rationalization of pay scales and rank structure. It is alleged in Ground C of the counter affidavit that the petitioners were not entitled to get the payscale of Rs. 5000-150-8000 in view of the fact that they have been given thereplacement of pay scale of Rs. 4000-100-6000 which was applicable to DelhiPolice's ASIs (executive) who were drawing pay scale of Rs. 1320-2040 (Pre-revised) similar to BSF Communication ASIs.

12. On the facts of the case, we are of the opinion that the writ petition was liable to be dismissed, and has wrongly been allowed by the learned SingleJudge.

13. It may be mentioned in this connection that the BSF is a totally different organization from the Delhi Police. Hence there can be no question of parity between the two, and Article 14 of the Constitution has no application, otherwise the police will be claiming parity with the Army. There must be judicial restraint in the matter of pay scales, creation of posts, grades, appointments, promotion and confirmation etc. These are all executive functions and it is not proper for the judiciary to encroach into this function. The BSFwas raised in December 1965 as an armed force of the UOI on the pattern of theIndian Army for safeguarding the International Borders and matters connected therewith. There can be no question of pay parity between the BSF and the Police. The respondents have already permitted parity to the extent mentioned in the order dated 10.10.1997 and no further parity can be granted by the Court.

14. Prior to the Fifth Pay Commission the pay scale of Head Constable (RM) was higher than all the other Head Constables in the Force. In view of the Fifth Pay Commission Report the pay scale of Head Constable (RM) has been merged with ASI's (RM) as a result of which, all posts of Head Constables in RM cadre were re designated as ASI's.

Apart from that, there are material differences between the service rules of Delhi Police and B.S.F. Some of these are noted below:-

The seniority of BSF personnel is governed by the BSF SOs and UOs promotion and seniority rules 1975 and its amendment of 1984 lays down the requirement of qualifying the pre promotion trade test for promotion in a specific trade quota against vacancy of ASI (OPR) and, therefore, no HC other than HC (OPR) can be promoted under the said rule. In so far as recruitment of HC (OPR) and ASI (RM)are concerned, they are governed by Ministry of Home Affairs, Border Security Force Communication (Non-Gazetted) Cadre Recruitment Rules, 1999.

In view of the aforesaid it is clear that by redesignation of HC (RM) asASI (RM), the promotional avenues of HC (OPR) are not at all effected as they have to earn their promotion in their particular trade. The fear of HC (RO) and ASI (OPR) is thus unfounded.

In the instant case, the first three petitioners are working as ASI (OPR)and petitioner number four is working as ASI (RM). Hence, the allegations and the respective claims of the petitioners are misconceived and unfounded.

So far as the claim of ASI (OPR) of BSF for pay scale of 5000-8000 is concerned, which is the pay scale of ASI (Wireless OPR) in Delhi Police, it is evident that firstly, there is no direct entry in the rank of ASI (OPR) in BSF and secondly, no comparison between the direct recruit of Delhi Police can be made with the promotee ASI (OPR) of BSF who are recruited as HC (Ros).

The basic qualifications of direct entry in Delhi Police are as under:-

(i)Matric or equivalent.

(ii)Second class certificate of competency as Wireless Opr issued by theMinistry of Transport and Communication or having passed Grade-II proficiency list of wireless Opr conducted/approved by the DCPW.

(iii)2 years practical experience in the actual operation of Radio Sets, preferably the Rama Muthuramalingam v. Dy. S.P., AIR 2005 Madras V. H.F in Civil Aviation, P and T Deptt, Rlys or any Govt. Agency.

In case of recruitment by promotion, the following eligibility conditions have to be fulfillled:-

From amongst confirmed HCs (Asstt Wireless Operator/Tele printer Operator) with5 years service in the grade Who have passed Gr.II proficiency test for WirelessOperators conducted/approved by the Date of Co-ordination Police Wireless.

OR

From amongst Telephone Exchange Operators with 5 years Service in the Grade and having passed Grade-IIIrd and Thereafter Grade II proficiency Test of WirelessOprs Course conducted/approved by DCPW.

In the BSF HC (OPR) who are taken from open market must have qualification of Matric or equivalent plus two years ITI certificate in Radio and TV/Electronics or Intermediate or 10+2 or equivalent with Physics, Chemistry and Maths as per MHA BSF (Non-Gazetted) Cadre Recruitment Rules-1999 and they are promoted as ASI (RO) after qualifying ORL Gde-II.

ASI (RM) is recruited with educational qualification Matric with Diplomain Radio and TV Technology/Electronics/Tele-Communication/Computer/Electrical/Mechanical Engineering/Domestic appliance from an institution recognized by State/Central Government or 10+2 with Physics, Chemistry and Mathematics, having 50% marks Physics, Chemistry and Mathematics from a recognized Board.

The post of ASIs (Wir Opr) and ASIs (Tech) are filled by directrecruitment in Delhi Police for which different educational qualifications have been specified. Recruitment rules of various police organizations materially differ and are not similar to the rules which exist for BSF.

(c ) The nature of duty of ASIs (Comn) of BSF is different from ASIs (Wir Opr)of Delhi Police. Further educational qualification required for ASIs (Wir Opr)Delhi Police and ASS (Opr) BSF also differ.

In Delhi Police while recruiting Wireless Operator, the candidates shouldhave 2 years practical experience in the actual operation of Radio Sets, preferably the v. H.F in Civil Aviation, P and T Deptt, Railways or any Govt. agency.

6. In the BSF, the Wireless Opr will be simply 10+2 or Matriculate with ITI whois raw hand in his proficiency while he will be in the recruitment stage.

Thus the Delhi Police Wireless Opr/ASI (RM) is getting more pay and allowancesin comparison to BSF HC (Wireless Opr.)

In BSF, HC (Opr) and ASI (RM) are taken from the open market and are raw handsin a particular trade, as the BSF does not ask for any prior experience in thatparticular trade.

Thus, promotional prospects of ASI (RO/RM) in BSF are far better than of ASI(Comn) of Delhi Police.

15. It may be mentioned in this connection that the concept of equal pay for equal work was enunciated by the Supreme Court in some earlier decisions but in recent time it has been considerably watered down by the Supreme Court itself which realized the huge practical difficulties in implementing the principle.

16. The principle of equal pay for equal work has often been misunderstood and there is a plethora of litigation demanding higher pay on the basis of the principle equal pay for equal work.

17. However it has been clarified by the Supreme Court now in a series of decisions that there are certain settled principles for determining the claim of parity in pay scales on the basis of equal pay for equal work. In recent decisions the Supreme Court has considerably watered down its own earlier decisions as it was realized that a mechanical interpretation of the principle of equal pay for equal work was creating great practical difficulties.

18. In State of Haryana and Anr. v. Tilak Raj and Ors. 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 ? equalpay 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."

19. In State of UP v/s Ministerial Karamchari Sangh, AIR 1998 Supreme Court 303,Supreme Court observed that even if persons holding the same post are performingsimilar 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.

20. In State of Haryana v. Jasmer Singh and Ors. , the SupremeCourt 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 by 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.

21. In Federation of All India Customs and Excise (recognized) and Ors. v. Union of India and ors. , the Supreme 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".

22. It may be mentioned that granting pay scales is a purely executive function and the Court should not interfere with the same. It may have a cascading effect creating all kinds of problems. Hence, the court should exercise judicial restraint and not interfere in such executive function vide Rama Muthuramalingam v. Deputy Superintendent of Police Mannargudi and Another .

23.Thus, 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 and other relevant factors the principle of equal pay for equal work cannot apply vide Government of W.B. v. Tarun K.Roy and Ors. .

24. Similarly in State of Haryana and Anr. v. Haryana Civil Secretariat Personal Staff Association State the principle of equal pay for equal work was considered in great detail. In paragraphs 9 and 10of the said judgment the Supreme Court observed that equation of posts and salary is a complex matter which should be left to an expert body. The Courts must realize that the job is both a difficult and time consuming task which even experts having the assistance of staff with requisite expertise have found it difficult to undertake. Fixation of pay and determination of parity is a complex matter which is for the executive to discharge.

Granting of pay parity by the Court may result in a cascading effect and reaction which can have adverse consequences vide Union of India and Ors. v. Pradip Kumar Dey .

In the present case the rules for wireless operators in the BSF and the DelhiPolice, which are totally different organizations, are materially different. The recruitment in Delhi Police is through promotion whereas recruitment in BSFis through direct recruitment. The eligibility requirements in the two services are different. Promotional avenues in both the organizations are different. From the very beginning the pay scale of ASIs in Delhi Police was higher than that of pay scale of ASIs communication wing, BSF. The basic qualification for direct entry as ASI (communication wing in Delhi Police) is different from that in BSF. Hence we are of the view that there was no merit in the writ petition since BSF and Delhi Police are different organizations with different rules and are not comparable.

25. The entire philosophy of judicial restraint has been laid down by the Madras High Court in Rama Muthuramalingam v. Dy. S.P., , and we agree with the views expressed therein. Grant of pay scales and parity are executive functions, and it is not proper for the Court to encroach into the executive domain.

26. In our opinion, Article 14 applies only within the same class. The DelhiPolice and the BSF are totally different organizations and hence there can be no question of parity between the two. For the reasons given above, this appeal is allowed and the impugned judgment of the learned Single Judge is set aside.