Union Of India & Anr. vs Sh.Ram Kumar & Ors.
2011 Latest Caselaw 2879 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.4033/2001

%                     Date of Decision: 30.05. 2011

Union of India & Anr.                                .... Petitioners

                     Through     Mr.R.V.Sinha Advocate       and      Mr.
                                 A.S.Singh, Advocates.

                        Versus

Sh.Ram Kumar & Ors.                                  .... Respondents

                     Through     Mr.Rajat Aneja, Advocate.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS.JUSTICE VEENA BIRBAL

1.      Whether reporters of Local papers               YES
        may be allowed to see the judgment?
2.      To be referred to the reporter or not?           NO
3.      Whether the judgment should be                   NO
        reported in the Digest?

ANIL KUMAR, J.

*

1. The petitioners have challenged the common order dated 8th

November, 2000 passed by the Central Administrative Tribunal,

Principal Bench, New Delhi in OA No.1003, 1004, 1005 and 1007 of

2000, titled as „Sh. Ram Kumar & Ors. v. Union of India & Ors.‟,

allowing the original applications (OAs) of the respondents and

granting the revised pay scale of Rs.5000-8000 from 1.1.1996 with

all consequential benefits. All the OAs had dealt with identical

grievances. Therefore, they were clubbed together and a common

order was passed.

2. The brief facts to comprehend the disputes between the parties

are that the Directorate of Coordination Police Wireless ("DCPW") is

an apex body for Police telecommunication in India constituted

under Ministry of Home Affairs, which plans, coordinates, trains,

evaluates and implements the modernization of police

telecommunication in the country. The entry level in the technical

stream in the office of the DCPW is Radio Technician. There are two

categories of Radio Technicians- Diploma Holders and Non Diploma

Holders. The difference in the pay scale of both the categories of

Radio Technicians had been recognized up until the Fourth Pay

Commission. The Fourth Pay Commission placed the Diploma

Holders and the Non Diploma Holders in the pay scale of 1400-

2300/- and 1350-2200/- respectively. The notification of the 5th Pay

Commission came into being on 30.11.1997. While implementing the

recommendations of the 5th Pay Commission, the petitioners gave the

pay scale of Rs. 4500-7000/- to Diploma Holders as well as to Non

Diploma Holders Radio Technicians. The respondents contended

before the Tribunal that the 5th Pay Commission has identified a

different pay scale for Technicians who are holding either a Degree in

Science or a Diploma in Engineering and as such they were entitled

to the pay scale of Rs. 5000-8000/- in terms of the recommendations

of the 5th Pay Commission in Para 50.23 and Para 50.24, however,

the petitioners herein had placed the respondents in the pay scale of

Rs. 4500-7000/- along with the Non Diploma Holders, thereby

ignoring the fact that the respondents are Diploma Holders and that

there is always a distinction recognized by the Pay Commission. As

per the respondents the 5th Pay Commission also made that

distinction, which has been recognized and maintained as per the

recommendations in Para 50.23 and 50.24 pay commission

recommendations. The relevant portion of Para 50.23 and 50.24 of

the 5th Pay Commission Report is enumerated herein below:

"50.23. We have carefully considered the demands of the Federation and the views of the Administrative Ministries/ Departments in the light of our General approach on the pay scales of different professional/ technical groups of staff and existing relativities between technical and non technical categories. We have, as a general rule, decided to improve the initial recruitment pay scale of diploma engineers in Government. We accordingly, recommended following pay structure for engineering subordinate cadres:-

       Existing                                 Proposed
                                              (in present terms)
        Rs.                                        Rs.

       1400-2300                               1600-2660

       1600-2660*                              1640-2900

       1640-2900*                              1640-2900

       2000-3200*                              2000-3500

       2000-3500                               2000-3500
       2375-3500                               2375-3750



        2375-3750                              2500-4000

*some of these are graduates in engineering, others are diploma holders;

50.24. These pay scales will apply mutatis- mutandis for diploma engineers in different cadres depending upon the availability of specific existing pay scales. We have also recommended specific pay structure for different engineering cadres;"

The respondents also contended that they have always been

placed in the higher scale over the Non Diploma Holders as they

possess a diploma in Engineering (3 years). In the office of the

petitioners as well as in other offices of Government of India persons

possessing Diploma in Engineering have been placed in a different

pay scale over the Non Diploma Holders. They further relied upon

Para 52.111 of the recommendations of the Fifth Pay Commission

which has approved the replacement scale of Rs 5000-150-8000/-

with regard to Technician with either a degree in Science or Diploma

in Engineering. The relevant portion is reproduced here:

"We also recommend that the other Technicians entering service with either a Degree in Science or Diploma in Engineering should be upgraded to the scale of pay of Rs.1600-2660 with Assured Career Progression on a dynamic basis to the levels of Rs.1640-2900 and Rs 2000-3500, respectively."

3. The plea of the respondents was contested by the petitioners

before the Tribunal, contending inter-alia, that till the 4th Pay

Commission the Diploma Holders Radio Technicians received higher

pay scales than Non Diploma Holders, i.e., 1400-2300/- and 1350-

2200/- respectively. However, the 5th Pay Commission merged both

the pay scales to Rs 4500-7000/-. The 5th Pay Commission did not

give any specific recommendation for Diploma Holders and Non

Diploma Holders in the office of DCPW. It was also contended that

the recommendations of the 5th Pay Commission vide Para 50.23

and 50.24 were meant for "Subordinate Engineering Cadres" and

Para 70.107 till 70.110 dealt specifically with the petitioner DCPW‟s

establishment in which the respondents are working. It has

discussed about the functions, the hierarchy and issues about the

office of DCPW but nothing is mentioned about the pay scales of

Radio Technicians. The petitioners submitted that the

recommendation at para 52.111 also does not cover the case of the

respondents, since Para 52.111 has recommended the pay scale of

Rs 5000-8000/- in respect of the "Medical and Para Medical

Services" and the scales are allowed for the "EMG, EEG and

Audiomatry Technicians" for Safdarjung Hospital, New Delhi; Dr

R.M.L.Hospital, New Delhi & JIPMER but not for the post of "Radio

Technicians". It was further pointed out that in the office of DCPW no

such posts are existing. Therefore it would not be justifiable to cite

the example of this case in respect of "Technician" in the Medical and

Para Medical Services. In fact, the office of the DCPW, petitioner no.

2 is bound by the instructions issued by the Ministry of Finance,

Department of Expenditure vide its notification dated 30.11.1997. In

the said notification replacement of pay scales have been shown in

Part „A‟ for all the Central Govt. offices and in Part „B‟ different

replacement scales have been given for common category of posts

and for some particular posts in certain offices. Since there is no

mention of office of DCPW in Part „B‟, it was urged that the

respondents‟ claim should be examined as per the First Schedule

Part „A‟ attached to the recommendations of the Fifth Pay

Commission. Based on the schedule, the office of petitioner no.2,i.e.,

DCPW, has placed both the Diploma Holders and Non Diploma

Holders Radio Technicians in the identical replacement scale of

4500-7000/-. It was further submitted that the matter being a policy

decision taken by the Govt. of India, the office of DCPW had no role

to play while replacing the pay scales of the Radio Technicians.

4. The Ld. Tribunal vide the order dated 8th November, 2000

observed that the recommendations made in paragraph 50.23 relates

to the persons working in all the Administrative Ministries/

Departments and in the light of the Commission‟s general approach

they have revised the pay scales of Diploma Holders from 1400-2300

to Rs.1600-2660. In para 50.24 the Commission has specifically

mentioned that the aforesaid scale will apply mutatis mutandis to

diploma engineers in different cadres. Further it was noted by the

Tribunal that the Para 70.107-70.110 as pointed out by the learned

counsel for the petitioners herein does deal with the office of DCPW

and does not make any recommendations for Diploma Holder

Engineers. Regarding the First Schedule Part „A‟ as relied by the

learned counsel for the petitioners, the schedule happens to be a

running statement of existing pay scales merged to provide for

revised pay scales as a general rule. This does not relate to specific

jobs and services as such and therefore, is not relevant. Thus

denying the contentions of the petitioners herein the Tribunal held

only Para 50.23 and 50.24 to be relevant. As in these paras the

Commission has made clear provisions for grant of the pay scale of

Rs. 5000-8000/- (pre revised Rs.1600-2600/-) to Diploma Holder

Engineers across the board, the Tribunal allowed the OAs and

directed the petitioners to grant the respondents the revised pay

scale of Rs 5000-8000/- with effect from 1.1.1996 with all

consequential benefits.

5. The review applications and miscellaneous applications filed by

the petitioners were rejected. The Tribunal held that in the review

applications filed by the petitioners, they have tried to re argue the

case by re-agitating the same issues which they had raised in the

OAs and since the Tribunal did not find any apparent error on the

face of the record, the RAs were rejected. With respect to the MAs,

the Tribunal held that the petitioners are blowing hot and cold at the

same time. On the one hand, a prayer was made for time to

implement the order and on the other hand, a prayer was made for

the stay of the order dated 8th November, 2000 in order to enable

them to approach the High Court to impugn the said order of the

Tribunal. Thus the Tribunal held that no case is made out on either

of the counts and rejected the MAs with the liberty to approach the

High Court, to the petitioners.

6. Aggrieved by the order of the Tribunal dated 8th November,

2000, the petitioners have filed the present writ petition. The

petitioners have reiterated their contentions as were raised before the

Tribunal. The petitioners state that the 5th Pay Commission merged

both the pay scales of Diploma Holders and Non Diploma Holders to

Rs 4500-7000/-. The 5th Pay Commission did not give any specific

recommendation for Diploma Holders and Non Diploma Holders in

the office of DCPW. The recommendations of the 5th Pay Commission

vide Para 50.23 and 50.24 are meant for "Subordinate Engineering

Cadres". As per the Recruitment Rules of DCPW the minimum entry

level qualification of Radio Technicians is Matric with I.T.I Certificate

while as incumbents of Subordinate Engineering Cadres and the

departments classified under Subordinate Engineering Cadres have

been specified in the Commission‟s Report, it does not include the

petitioner no. 2‟s establishment. The incumbents of Subordinate

Engineering Cadres, say junior Engineers in Central Public Works

Department ("CPWD"), are required to have minimum qualification of

Diploma in Civil/ Electrical/ Mechanical Engineering. Therefore, the

Diploma Engineers of Subordinate Engineering Cadres cannot be

equated or compared with the Diploma Holder Radio Technicians of

DCPW since the required minimum qualification is only Matric with

I.T.I Certificate. To add to that, it may be noted that the next

promotion post of Junior Engineers of CPWD is Assistant Engineer

which is a Gazetted Post whereas in the DCPW, a Diploma Holder as

well as Non Diploma Holder Radio Technician is first promoted to the

grades of Technical Assistant (Maintenance)/ Technical Assistant,

then to the post of Communication Assistant (abolished w.e.f.

15.9.2000), then Senior Technical Assistant and then Extra

Assistant Director, which is a Grade „B‟ Gazetted Post in the pay

scale of Rs. 6500-10500/-.

7. The petitioners have relied upon State of Punjab & Anr. Vs. Surjit

Singh & Ors., 2009 (11) SCALE 149 where it was held that the

principle of equal pay for equal work can only apply if there is

complete and wholesale identity between the two groups. Even if the

employees in the two groups are doing identical work they cannot be

granted equal pay if there is no complete and wholesale identity e.g.

a daily-rated employee may be doing the same work as a regular

employee, yet he cannot be granted the same pay scale. Similarly,

two groups of employees may be doing the same work, yet they may

be given different pay scales if the educational qualifications are

different. Also, pay scale can be different if the nature of jobs,

responsibilities, experience, method of recruitment, etc. are different.

It is now well known that the equality clause contained in Article 14

should be invoked only where the parties are similarly situated and

where orders passed in their favor is legal and not illegal. It has a

positive concept. It was held in this case that the interest of justice

would be sub-served if the State is directed to examine the cases of

the respondents herein by appointing an Expert Committee.

8. The petitioners further relied upon State of Madhya Pradesh &

Ors. Vs. Ramesh Chandra Bajpai, 2009 (11) SCALE 619. The core

question which arose for consideration was whether the respondent

who was working as Physical Training Instructor in Government

Ayurvedic College was entitled to claim parity of pay with the

teachers who had been granted UGC scale of pay. It was held that it

is well settled 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. The Court has to consider the

factors like the source and mode of recruitment/appointment,

qualifications, the nature of work, the value thereof, responsibilities,

reliability, experience, confidentiality, functional need, etc. 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. The Court also relied on Government of West Bengal v. Tarun

Kumar Roy MANU/SC/0945/2003: 2004 (1) SCC 347 where it was

opined that in a case where the employees do not hold essential

educational qualifications, they cannot claim parity in the scale of

pay on the ground of equality, and held as under:

"14. Article 14 read with Article 39(d) of the Constitution of India envisages the doctrine of equal pay for equal work. The said doctrine, however, does not contemplate that only because the nature of the work is same, irrespective of an educational qualification or irrespective of their source of recruitment or other relevant considerations the said doctrine would be automatically applied. The holders of a higher educational qualification can be treated as a separate class. Such classification, it is trite, is reasonable. Employees performing the similar job but having different educational qualification can, thus, be treated differently.

* * *

30. The respondents are merely graduates in science. They do not have the requisite technical qualification. Only because they are graduates, they cannot, in our opinion, claim equality with the holders of diploma in Engineering. If any relief is granted by this Court to the respondents on the aforementioned, ground, the same will be in contravention of the statutory rules. It is trite that this Court even in exercise of its jurisdiction under Article 142 of the Constitution of India

would not ordinarily grant such a relief which would be in violation of a statutory provision."

It has been held by the Supreme Court that only because the

nature of work is same, irrespective of educational qualification,

mode of appointment, experience and other relevant factors, the

principle of equal pay for equal work cannot apply.

9. The petitioner‟s counsel submitted that the relevant

paragraphs in case of the respondents are Para 70.107 till 70.110 of

the recommendations of the 5th Pay Commission which deal with the

petitioner DCPW‟s establishment in which the respondents are

working. It has discussed about the functions, the hierarchy and

issues about the office of DCPW but nothing is mentioned about the

pay scales of Radio Technicians. The petitioners categorically

asserted that 5th Central Pay Commission did not give any specific

recommendation about any Group B, C or D posts in the Office of the

Directorate of Coordination Police Wireless, therefore, the pay scale

of all the posts had been replaced by the standard pay scale defined

by the 5th Central Pay Commission. The petitioners further submit

that this becomes crystal clear from the fact that the Pay

Commission did not agree for the pay scale of Rs.2200-4000/- (pre

revised) in respect of Extra Assistant Director, which is the

promotion post in the hierarchy of Radio Technician. Instead the Pay

Commission recommended the scale of Rs. 2000-3500/- to the Extra

Assistant Director. Pay Commission also did not agree for the scale of

Rs.2200-4000/- as the method of recruitment for this post is not

through Combined Engineering Services Examination. The

petitioners contended that the recommendation at para 52.111 also

does not cover the case of the respondents. The Ld. Counsel for the

petitioners states that petitioner no. 2 is bound by the instructions

issued by the Ministry of Finance, Department of Expenditure vide

its notification dated 30.11.1997. In the said notification replacement

of pay scales have been shown in Part „A‟ for all the Central Govt.

offices, the respondents‟ claim should be examined as per the First

Schedule Part „A‟ attached to the recommendations of the Fifth Pay

Commission. Based on the schedule, the office of petitioner no.2,i.e.,

DCPW, has placed both the Diploma Holders and Non Diploma

Holders Radio Technicians in the identical replacement scale of Rs.

4500-7000/-.

10. The petitioners‟ next contention is that the Tribunal failed to

appreciate that the pay scale of Technical Assistant (Maintenance)/

Technical Assistant (next promotion post) is Rs.4500-7000. This will

undoubtedly lead to an anomaly, since the scale of the feeder cadre

i.e. Radio Technician would be Rs. 5000-8000/- and the scale of next

promotion post i.e. Technical Assistant (Maintenance)/ Technical

Assistant would be lower i.e., Rs 4500-7000/-. The petitioners‟

counsel stated that the pay commission recommended Rs 4500-7000

pay scale for Radio Technicians of the Office of the DCPW. The

Tribunal could not take over the function of the Pay Commission and

revise the scale to Rs.5000-8000/-.

11. This Court has heard the learned counsel for the parties in

detail and have also perused the record. It is indeed for the Tribunal

to consider whether the action of the State is arbitrary or not or

whether the pay scale has been fixed in accordance with law or not.

Every state action has to be founded on valid reason. A state action

which is unreasonable and arbitrary strikes at the very root of Article

14 of the Constitution of India, then the Tribunal is entitled to review

the decision of the State. It is admitted that before implementation of

the 5th Pay Commission, the Diploma Holder Radio Technicians were

in the pay scale of Rs 1400-2300/- and the petitioners adopted the

replacement pay scale of all categories under First Schedule part A of

notification of Government of India dated 30.9.1997 by which the

pay scale of Diploma Holder Radio Technician had been revised to

Rs.4500-7000/-. It is also admitted that thereafter w.e.f. 8.1.2002

the pay scale of the respondents has been revised by notification

dated 8.1.2002 and they have been given pay scale of Rs.5000-

8000/- from Rs.4500-7000/- on the restructuring of Group B and C

posts in operational and technical wings of DCPW. The question

before us is therefore restricted to whether the respondents are

covered by recommendation given in Para 50.23 and 50.24 as is held

by the Tribunal.

12. It cannot be disputed that the recommendations made in

paragraph 50.23 relates to the persons working in the Subordinate

Engineering Cadre in different Ministries/ Departments and that it

does not specifically deal with the respondents. However in the light

of the Commission‟s recommendation in para 50.24 wherein the

Commission has specifically mentioned that the pay scale specified

in 50.23 will apply mutatis mutandis to diploma engineers in

different cadres, the claim of the respondents has been dealt with,

and therefore it is justified. For the sake of clarity the relevant para

50.24 is reproduced as under:

"These pay scales will apply mutatis-mutandis for diploma engineers in different cadres depending upon the availability of specific existing pay scales. We have also recommended specific pay structure for different engineering cadres."

13. Therefore the contention of the petitioners that Para 50.24

does not apply to the respondents since it deals with Sub-ordinate

Engineering Cadres in the ministries specifically mentioned therein,

cannot be accepted. If that was the case then after recommending

the pay scale in Para 50.23 which undoubtedly applies to "Sub-

ordinate Engineering Cadre" there was no need for the Commission

to specifically mention the fact that this pay scale would apply

mutatis-mutandis to diploma engineers in different cadre. In addition

in Para 50.23 the Commission is also categorical in mentioning that

it has, as a general rule, decided to improve the initial recruitment

pay scale of diploma engineers in the government.. A perusal of the

5th Central Pay Commission‟s Report also reveals the intention of the

Commission while dealing with the aspect of „Equal Pay For Equal

Work‟, specifically in Para. 40.17 which deals with the aspect

qualification based pay scales. Para 40.17 is reproduced as under:

"We are suggesting in a later chapter that there should be a permanent pay body, so that it can keep on studying the parameters of different jobs and develop more objective criteria for job evaluation than are available at present. Although it is not very scientific or conclusive, we felt that as a preliminary step towards rationalization, the entry qualification could provide a fairly reliable clue. It will be noticed that we have attempted a broad rationalization of pay scales across cadres and departments, depending on whether the entry qualification is middle pass, matriculation, 10+2, matriculation with ITI Certificate, 10+2 with a two year diploma, 10+2 with a three year diploma, an ordinary degree, a degree in agriculture, horticulture, law, engineering, etc. or a post graduate degree. The results may not be perfect, but one can have some justification that atleast the educational qualifications have been recognized."

14. Therefore, it has been rightly held by the Tribunal that the

Commission clearly made provisions for grant of the pay scale of

Rs.5000-8000/- (pre-revised Rs.1600-2660) to Diploma Holder

Engineers across the Board. As the notification of the 5th Pay

Commission came into being on 30.11.1997, the respondents shall

be granted the pay scale of Rs.5000-8000/- w.e.f. 1.1.1996 in

pursuance of the Commission‟s Recommendations in para 50.23 and

50.24.

15. For the foregoing reasons we do not find any such illegality or

perversity in the order dated 8th November, 2000 passed in original

applications No.1003, 1004, 1005 & 1007 of 2000 titled "Sh. Ram

Kumar & Ors. v. Union of India & Anr." which would require any

interference by this Court, by exercising its power under Article 226

of the Constitution of India. Thus the writ petition is dismissed and

the order of Tribunal granting the revised pay scale of Rs 5000-8000

with effect from 1.1.1996 with all consequential benefits is upheld.

The parties in the facts and circumstances are left to bear their own

cost.

ANIL KUMAR, J.

May 30, 2011                                 VEENA BIRBAL, J.
„k‟