Delhi High Court
Uoi Thr. Secretary Ministry Of ... vs Indian Navy Civilian Design ... on 2 August, 2010
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On:23rd July, 2010
Judgment Delivered On: 2nd August, 2010
+ W.P.(C) NO.1006/2008
UOI THR. SECRETARY MINISTRY
OF DEFENCE ..... Petitioner
Through: Mr.H.K.Gangwani, Advocate
versus
INDIAN NAVY CIVILIAN DESIGN OFFICERS‟
ASSOCIATION THR. SWAPAN DEB & ANR. .....Respondents
Through: Mr.M.K.Bhardwaj, Advocate
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. To meet the functional requirements of the Indian
Navy regarding specific assignments of the naval dockyards,
technical directors of naval headquarters and training
establishments the cadre of design officers in the Indian Navy
was created in the year 1965.
2. The drawing staff in the Navy was put into two
diverse disciplines. The first was in the construction, electrical,
engineering and armament discipline. Group-B gazetted posts
in the disciplines of construction, electrical and engineering
were created and the officers were designated as junior design
officers (JDO). The second division was armament in which
posts designated as civilian technical officers (CTO Design)
were created.
3. Since inception, for purposes of direct recruitment,
the educational qualification required for the post of JDO was a
degree in naval architecture. Period of probation was one year
before confirmation. For CTO (Design), educational
qualification was a second class degree in mechanical
engineering/electrical engineering. Period of probation was
one year before confirmation. For induction by way of
promotion to the post of JDO, eligibility was a chief
draughtsman with two years regular service in grade I or
draughtsman grade I with five years regular service in the
grade who qualified departmental qualifying examination. For
induction by way of promotion to the post of CTO, eligibility
was Chief Draughtsman (armament) with three years‟ regular
service in the grade along with the requisite experience in
design and development of armament stores, gauges and jigs
fixture etc.
4. Since inception, the two cadre were placed in the
same pay scale, till the acceptance and implementation of the
recommendation of the 5th Pay Commission and thus with
effect from 1.1.1996 there came into existence a difference in
the scale of pay applicable to the two posts. The post of CTO
was placed in the scale of Rs.7500-12,000/- and that of JDO
was placed in the scale of Rs.7450-11,500/-.
5. Persons holding posts as JDO made a
representation to the Central Government through the Naval
Headquarter alleging an anomaly and hence a discrimination.
They claimed parity with the post of CTO and hence prayed
that the post of JDO be placed in the scale of Rs.7500-12,000/-.
6. Inter alia it was highlighted that the reason why
discrimination was apparent, was that in the past both posts
were in the same scale of pay.
7. The Naval Headquarter agreed with the contention
urged by persons holding the post of JDO and made a
recommendation to the Central Government by writing;
quote:-
"There is a justification for considering upgradation of
the pay scale of the post of JDO at par with CTO
(Design), Civilian Technical Assistant, Administrative
Officer-I and Junior Scientific Officer in the Navy. All
the said posts were in the pre-revised pay scale of
Rs.2,000-3,500/2,375-3,500 and have been granted
revised pay scale of Rs.7,500-12,000. But the post of
JDO has been placed in the lower pay scale of
Rs.7450-11500 equivalent to the pay cale of Sr.
Foreman which was earlier a Group C post but later
classified as Group B. It is also a fact that the feeder
grade of Chief Draftsman was in the pre-revised scale
of Rs.2000-3200 and the promotion post of JDO was in
the scale of Rs.2375-3500. Going by the
recommendations in para 46.13, the post of JDO
should have been placed in the notional scale of
Rs.2500-4000 to the post of JDO while, at the same
time, adhering to their recommendation in para 46.13
for placing the promotional grade in the new notional
scale in the case of CTO (Design). In regard to the
duties of CTO (Design) and JDO, it is submitted that
tere are variations depending upon the place of
posting. Neither of these posts can be categorized as
performing higher duties and responsibilities; in fact
we could describe their duties as complementary, the
JDO involved in execution of the tasks and the CTO
(Design) in inspection and standardization. The duties
and responsibilities of the two, posts is placed at Flag
X opposite.
The proposed upgradation of the pay scale of JDO
does not have cascading effects and could therefore
be considered in isolation. It does not also disturb the
relativities between different cadres. It has been
ascertained that the post of JDO does not exist in
organizations like the EME, MES, Ordnance Depots and
Air Force. There will, therefore, be no repercussion in
those organizations. There are 62 posts of JDOs in the
Navy and the financial implication for the proposed
upgradation would be approximately Rs.3.5 lakhs
annually. This should not be a constraint considering
that the lower pay scale was granted to them
erroneously.""
8. The Central Government duly considered the
representation made as also the recommendations of the
Controlling Ministry i.e. the Ministry of Defence and after
examining the issue rejected the claim for parity.
9. Aggrieved by the said rejection, the respondents
filed OA No.2228/2006 praying for the quashing and setting
aside of the order dated 7.4.2006 rejecting their claim and
sought a direction against the petitioner to grant them pay in
the scale of Rs.7,500-12,000/- i.e. at par with the post of CTO.
10. The respondents claimed parity on the grounds (i)
That though the designation of the two posts i.e. JDO and CTO
is different, but the nature of duties and responsibilities of the
two are same except that they are placed in different
disciplines of the Indian Navy. (ii) Further, before acceptance
and implementation of the recommendation of the 5th Pay
Commission both posts were in the same scale of pay. (iii) It
was further pleaded that the feeder cadre to both the posts is
the post of Chief Draughtsman and that the said post is in the
scale of pay Rs.6,500-10,500/-. (iv) They further contended
that while the educational qualifications prescribed in the
recruitment rules for CTO require only a degree in Mechanical/
Electrical engineering or equivalent, the recruitment rules for
JDO require a degree in Mechanical/ Marine engineering and
additionally 2 years practical experience in
design/installation/construction of ships. In other words it was
pleaded that education qualifications for both posts is the
same but for JDO there was an additional requirement of two
years‟ practical experience which was not there for CTO. (v) It
was further pleaded that amongst others, persons holding
posts of JDO supervise the work of Senior Foremen which post
is also in the pay scale of Rs.7,450-11,500/-. Thus, it was
pleaded that this has resulted in disturbing the vertical
relativity between the post of JDOs and Senior Foremen.
11. Thus, on 5 grounds plea for parity was urged.
12. Repelling the claim of the respondents, the
petitioner contended that matters pertaining to fixation of pay
scales are purely administrative functions and that the Courts
must not interfere in the same.
13. On merits, it was pleaded that the nature of duties
of the two posts are entirely different and the two were
contrasted as under:-
DUTIES OF JDO AND CTO
JDO CTO
(a) Execute all technical, (a) Responsible for ensuring
professional and quality, reliability and service-
administrative work entrusted ability of all stores and
to him. associated test equipments,
devices and apparatus held on
(b) Supervise the work done
charge of indigenization cell
by the drawing staff.
including the CAD system.
(c) Check the drawings
(b) Be thoroughly conversant
produced by the
with the NA stores taken up
draughtsman.
for indigenization for their
(d) Guide and train operation, behavior, quality
Draughtsman in theory and assurance procedures,
practice of Naval Architecture documents, Calculations
discipline. policies, Rules and
Regulations applicable for
(e) Scrutinize
indigenization of stores.
officers/quotations/specificatio
ns/drawings received from (c) Be generally familiar with
outside agencies. the activities/developments in
other section/inspectorate
(f) Prepare and maintain
regarding armaments.
progress reports/charts for all
projects. (d) Ensure availability of all
documents, instructions
(g) Responsible for safe
required for quality assurance
custody of all BRs, documents,
of NA stores pertaining to
instruments, stationary,
IFPT.
drawing and other data
pertaining to hull engineering (e) Responsible for command,
and electrical instruments. control and administration of
all staff placed under him.
(h) Extract, obtain, classify
and collage huli (f) To ensure expeditious
design/construction, correct identification of
equipment data and to material and preparation of
maintain all details of drawing/paper particulars of
manufactures and equipment. NA stores required to be
indigenized.
(i) Scrutinize
quotations/specifications (g) Ensure to keep an updated
submitted by ship builders. record of items pending
indigenization/completed as
per the priorities allocated.
He would be responsible for
the correctness of the
information and availability of
sufficient number of
drawing/paper particulars
required for
manufacture/fabrication of the
items indigenously at all
times.
(h) For safe custody, repair
AMC, demand procurement of
drawing office equipments
had stationary and efficient
functioning of indigenization
cell at NAI (K) including
CAD/CAM system.
(i) He is to satisfy himself
about the
correctness/otherwise of
drawing/paper particulars
including dimensional/material
check, fitment and functioning
trails of pilot as well as
associate himself with such
trails.
(j) Responsibilities for
conducting local proof of all
NA stores in NA(K), NAI(T) in
accordance with relevant and
stipulated
instruction/conditions on as
and required basis.
(k) Safety of men and material
during all stages of proof.
(l) Necessary liaison with
concerned outside agencies in
case the proof is required to
be carried out by any such
agency.
(m) To ensure timely rendition
of proof results to all
concerned.
(n) Responsible for
undertaking failure
investigation of all NA stores
expeditiously.
(iii) To correct observation,
analysis and rendering report
on performance of these
stores.
(iv) To recommend necessary
corrective measures to the
extent possible.
14. It was pleaded that there are various parameters to
determine equality in the two posts and that the claimants
before the Tribunal have not shown the equality required by
law.
15. It may be noted that the petitioner did not dispute
that in the past both posts were in the same scale and that
persons holding the post of JDO supervise the work of senior
Foreman which post also is in the same scale of pay as that of
JDO.
16. Allowing the claim of the respondents, vide its order
dated 8.6.2007 the Tribunal has held as under:-
"13. The arguments as noted in the foregoing
paragraphs show overwhelming parity between the
JDOs and CTO (Design) till the 4th Pay Commission. It
is only in the 5th Pay Commission that differentiation
in the pay scales has been made by giving higher pay
scale to CTO (Design)........ What is important to note
is that the essential educational and other
qualifications in case of JDOs are slightly higher than
in case of CTO (design). The feeder posts in JDO
(Electrical/ Engineering/ Construction) and CTO
(Design) have all through the same scales of pay as
seen from the table in paragraph 2 above.
x x x x
14. We have seen that the Naval Headquarters as
well as the Ministry of Defence have made a very
strong plea for upgrading the pay scales of JDOs to
that of CTO (Design) on the ground that the functions
performed by them are essentially identical and
complimentary. It is not correct to state that these
notings have given any cause of action to the
Applicants. These notings have only been cited in
support of their argument for parity, which task these
notings have performed to a great extent. We feel
that reliance of M.D., U.P. Land Development
Corporation (supra) is misplaced because the facts in
the case before the Hon‟ble Supreme Court were
entirely different from the facts of the instant case.
15. ..... This is a case in which, considering all
aspect, there is a hostile discrimination against
the JDO cadre vis-à-vis CTO (Design). Therefore,
considering the ratio laid down by the Hon‟ble
Supreme Court in P.V.Hariharan‟s case (supra), we
are justified in stepping in and interfering with the
decision, or the lack of it, of the Government.
Reliance is placed on Randhir Singh Vs. Union of
India & Ors., (1982) 1 SCC 618 in which the Hon‟ble
Supreme Court has held as follows:
".....where all things are equal i.e. where all the
relevant considerations are the same, persons
holding identical posts may not be treated
differently in the matter of their pay merely
because they belong to different department."
16. On the basis of above consideration, we quash
the impugned order dated 07.04.2006 and direct the
Respondents to grant to the Applicants the pay scale
of Rs.7500-12000/- at par with Group „B‟ gazette post
of Civilian Technical Officer (Design) from the same
date as it has been given to the Group „B‟ gazette post
with all consequential benefits. This should be done
within four months from the date of receipt of a copy
of this order. No costs."
17. At the outset it is pertinent to mention here that
though the learned Tribunal has noted the fact of a
comparative analysis of the duties and responsibilities of the
JDO and CTO being placed on record by the respondent but
has failed to deal with the same.
18. Before proceeding to decide upon the claims, we
discuss the law on the principle of "equal pay for equal work".
19. Equal pay for equal work means persons doing
identical work under the same employer are not to be treated
differently in relation to their pay.
20. In the decision reported as 1987 (Supp) SC 257
Inder Singh & Ors. Vs. Vyas Muni Mishra & Ors. the Supreme
Court held that when two groups of persons are in the same or
similar posts, performing same kind of work, either in the
same or in the different departments, the Court may in
suitable cases direct equal pay by way of removing
unreasonable discrimination and require the two groups,
similarly situated, to be treated equally.
21. In the decision reported as 2009 (13) SCC 635 State
of M.P. & Ors. Vs. Ramesh Chandra Bajpai, the Supreme court
has dealt with the jurisprudence relating to the concept of the
"equal pay for equal work" and citing various precedents on
the said propositions has laid down the following principles:-
(i) That the doctrine of equal pay for equal work can
be invoked only when the employees are similarly
situated. Similarity in the designation or nature or
quantum of work is not determinative of equality in
the matter of pay scales. In other words the
equality clause can be invoked in the matter of pay
scales only when there is 'wholesale identity'
between the holders of two posts.
(ii) In determining whether two posts are similarly
placed or there is 'wholesale identity' between the
two, the Court has to consider the factors like the
source and mode of recruitment/appointment to the
posts, qualifications required, the nature of work,
the value thereof, responsibilities, reliability,
experience, confidentiality and functional need, etc.
(iii) Equal pay for equal work carries with it a positive
concept of equality and cannot be invoked for
perpetuating illegality i.e. an illegal or wrong order
passed in one case cannot be made the basis for
compelling a public authority to pass similar order
in other cases.
(iv) The doctrine of equal pay for equal work does not
contemplate that only because the nature of 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.
22. In yet another decision of the Supreme Court
reported as 2009 (9) SCC 514 State of Punjab and Another vs
Surjit Singh and Others as many as 31 precedents have been
summarized. The principles culled out in the said decision are
in consonance with the law laid down in Ramesh Chandra
Bajpai's case (Supra) and are noted as under:-
(I) Further clarifying the law and re-iterating the
concept of wholesale identity, it was held 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 or even in the
same organization. This is a concept which requires
for its applicability, complete and wholesale identity
between a group of employees claiming identical
pay-scales and the other group of employees who
have already earned such pay-scales. It has been
held that the problem about equal pay cannot be
translated into a "mathematical formula".
(II) To claim a relief on basis of equality, it is for the
claimant 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-à-vis an alleged
discrimination.
(III) A classification based on difference in educational
qualifications justifies a difference in pay scales. A
mere nomenclature designating a person as say a
carpenter or a craftsman is not enough to come to
the conclusion that he is doing the same work as
another carpenter or craftsman in regular service.
The quality of work which is produced may be
different and even the nature of work assigned may
be different. It is not just a comparison of physical
activity. The application of the principle of „equal
pay for equal work‟ required consideration of
various dimensions of a given job. The accuracy
required and the dexterity that the job may entail
may differ from job to job. It cannot be judged by
the mere volume of work. There may be qualitative
difference as regards reliability and responsibility.
Functions may be the same but the responsibilities
make a difference. Thus normally the applicability
of this principle must be left to be evaluated and
determined by an expert body.
23. It is apparent that on what principles equality has to
be determined cannot be put in a water tight compartment.
But some of the factors to be noted are:
a) Source and mode of recruitment/appointment.
b) Educational and other qualifications required.
c) Nature of work.
d) Value of work.
e) Responsibilities involved.
f) Reliability.
g) Prior experience and expertise.
h) Confidentiality and functional needs.
24. It can thus safely be said that the aforesaid 8
guiding principles need to be kept in mind and any other which
may be relevant on the facts and circumstances of each case
has also to be taken note of.
25. In the backdrop aforesaid, it may be highlighted
that the educational qualification for both posts is a graduation
degree. For the post of JDO the degree is a Naval Architecture
and for CTO the degree could be in Mechanical or Electrical
Engineering. This is for direct recruits. For promotion, a Chief
Draughtsman is eligible for promotion to both the posts with a
difference of qualifying service being two years in regular
service as a Chief Draughtsman for the post of JDO and three
years for CTO. Thus, there is parity in the two posts qua the
source and mode of recruitment and the educational
qualifications.
26. Qua the issue of nature of work, value of work,
responsibilities involved and reliability, suffice would it be to
state that the two cannot be compared as objects, for the
reason one set of persons are in the armament discipline and
the other in the engineering discipline. Just as a teacher
teaching Physics cannot be compared with a teacher teaching
Chemistry with reference to the subjects taught, similarly
would be position in the instant case. But, difference in scale
of pay to a teacher teaching Physics and to a teacher teaching
Chemistry cannot be simply justified by saying that the two
disciplines cannot be compared.
27. This is the problem with the chart of duties on
which the petitioner seeks to justify the difference in the work.
28. The test is to see the equality of work by applying
the qualitative and the quantitative test. Just as a teacher of
Physics would require a degree in Physics, the teacher of
Chemistry would require a degree in Chemistry. Thus,
qualitatively as well as quantitatively it can safely be said that
both are similarly situate. If a Physics teacher is required to
take 20 lectures a month, conduct 5 practical classes and take
2 tutorials and the same being for the Chemistry teacher and if
both of them are teaching undergraduates, by contrasting
what the Physics teacher teaches and what the Chemistry
teacher teaches, would be the wrong way to solve the
problem.
29. If we compare the duties of the two posts we find
that both JDO and CTO supervise the work of the drawing staff
under them as also guide them. Both of them help in the
identification of material and preparation of the requisite
drawings and prepare and maintain progress reports for the
projects. In their respective disciplines, both certainly
discharge services which are qualitatively and quantitatively
near identical and if not identical.
30. Now, it is next to impossible to return findings of
qualitative and quantitative identity with 100% precision.
31. We wonder as to wherefrom and on what principle a
difference of Rs.50/- in the scale of pay has been worked upon.
As noted above the post of CTO has been placed in the scale of
Rs.7500-12,000/- and that of JDO in the scale of Rs.7450-
11,500/-.
32. Since the inception of the cadre and till the
recommendations of the 5th Pay Commission were enforced,
both posts were in the same scale of pay and it is not the case
of the petitioner that a wrong had been committed in the past
which required to be undone vis-à-vis the post of CTO.
33. The twin reason of there being parity in the scale of
pay in the past which now has been violated in sum of Rs.50/-
only for which marginal difference no reasons are forthcoming,
one is led to the conclusion that an insidious discrimination has
ensued.
34. One fact needs to be highlighted, being that
persons holding the post of JDO are required to supervise the
work of Senior Foremen which post is also in the scale of
Rs.7450-11,500/- which has resulted in disturbing the vertical
relativity between the two posts.
35. Giving the aforesaid additional reasons, we concur
with the conclusion arrived at by the Tribunal and hence
dismiss the writ petition but make no order as to cost.
(PRADEEP NANDRAJOG)
JUDGE
(MOOL CHAND GARG)
JUDGE
AUGUST 02, 2010
mm
