Delhi High Court
Sanjay Kher & Ors vs Union Of India & Anr on 24 October, 2024
Author: Yashwant Varma
Bench: Yashwant Varma
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 24.10.2024
+ LPA 675/2013
SANJAY KHER & ORS .....Appellants
Through: Mr. Piyush Sharma, Mr.
Shivam Dubey and Mr. Anuj
Kumar Sharma, Advocates.
versus
UNION OF INDIA & ANR .....Respondents
Through: Mr.Paritosh Budhiraja, Ms.
Larika Khandelwal, Ms. Divya
Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
YASHWANT VARMA, J. (Oral)
1. This Letters Patent Appeal is directed against the judgment
rendered by the learned Single Judge dated 09 April 2013 in terms of
which the writ petition preferred by the appellants came to be
dismissed.
2. We take note of the reliefs which were principally claimed in
the writ petition and which read as follows: -
"(A) allow this writ petition of the Petitioners with costs;
(B) issue appropriate writ or writs, direction or directions, order or
orders
(i) declaring the Petitioners entitled to the foreign allowance for the
period they worked in Iraq at the same revised rates as were paid to
the Non-IFS officers and staff of Ministry of External Affairs
posted in Iraq with "all consequential benefits, like payment of
arrears of foreign allowance along with interest @ 18% per annum
for the period of delay committed by the respondents since 1990
with all consequential benefits.
(ii) directing the respondents to revise upwards the rate of foreign
allowance, admissible to Petitioners, at least w.e.f. 1.1.86, in line
with and at the same rate(s) of foreign allowance as paid to the
Non-IFS officers and staff of the Ministry of External Affairs
posted in Iraq during the same period(s) and make the payment of
arrears of foreign allowance to the Petitioners due to such revision
along with interest @ 18% per annum for the period of delay
committed by the respondents since 1990 with all consequential
benefits.
(iii)direct the respondents to pay cost of the petition.
(iv) issue such other and further writ or writs, direction or
directions, order or orders or in the nature of mandamus as this
Hon'ble Court may deem fit and proper in the facts and
circumstances of the case."
3. The principal grievance of the appellants was a purported
failure on the part of the respondents to revise the foreign allowances
which were payable to its employees while serving and discharging
duties overseas and the same not being kept abreast with the various
provisions which the Union Government came to impose in respect to
non-Indian Foreign Services1 officers. It was further submitted that
although Dearness Allowance2 had been revised from time to time,
no corresponding exercise in respect of foreign allowances was
undertaken. It was in the aforesaid light that the appellants
approached this Court. For the purposes of disposal of the present
IFS
DA
appeal, it would be apposite to take note of the following undisputed
facts.
4. The appellants are stated to be employed in the Rashtriya
Pariyojna Nirman Nigam Limited, a public sector undertaking, and
who in the course of their employment came to be posted in Iraq. The
learned Single Judge has noted that the petitioners had claimed that
foreign allowances which were granted to them were liable to be
revised from time to time and to be thus kept in step with the increase
in the DA granted to employees in India as well as the upward
revision of foreign allowances in respect of non-IFS officers of the
Union Government.
5. From the appeal, we find that the petitioners were posted
overseas over a period of time details whereof appear in a table
forming part of paragraph 4 and which reads as follows:-
"
Name Period Total Period
From To
1. Mr. Sanjay 01.01.86 01.01.86 3 years,
Kher , 5 months,
& 13 days
2. Mr. Subrat 19.02.88 14.02.91 3 years
Sasak & 5 days
3. Mr. A.K. Shalla 01.01.86 03.06.87 1 years,
5 months
& 2 days
6. Undisputedly, the services of the petitioners, while posted at
Iraq were governed by "Rules relating to terms and conditions of
the regular employees posted abroad-Iraq3." These rules and
insofar as foreign allowances was concerned, contained the following
provision:-
"5. Foreign Allowance: To compensate, for the higher cost of
living, an employee of the Company serving outside India shall be
granted a foreign allowance at such, rates and subject to such
conditions as may be prescribed by the Company from time to
time, provided that such allowance shall not exceed the rates of
foreign allowance applicable to Non-IFS officers of the
Government of India of the equivalent category, such rates being
subject to 5% compulsory economy cut and slab deductions
prescribed by the Government of India from time to time. The
present rates are, however, enclosed as Annexure 'A'."
7. The record would reflect that an issue appears to have arisen in
respect of the revision of emoluments liable to be paid to officers
belonging to Class-I and Class-II services and employed in different
public sector enterprises.
8. A High Powered Pay Committee4 appears to have been
constituted by the Union Government to study all aspects and to
submit its recommendations. Since the report so submitted was not
acted upon, the association of employees appears to have approached
the Supreme Court by way of writ petitions.
9. Those writ petitions as well as Transfer Cases ultimately came
to be disposed of on 3 May 1990 with the Supreme Court framing
directions for all public sector undertakings to bear in consideration
the report of the HPCC and to revise pay scales and the structure of
emoluments accordingly.
Rules
HPCC
10. This becomes evident from the following directions which
ultimately came to be framed:-
"(i) The scales of pay and dearness allowance as recommended in
the Report will be extended to those employees who have been
appointed with specific terms and conditions for grant of Central
D.A. This will be equally applicable to the employees who by rules
laid down by the public sector enter- prizes are being paid Central
dearness allowance.
(ii) The employees appointed on or after January 1, 1989, will be
governed by such pay-scales and allowances as may be decided by
the Government in its discretion. Those appointed earlier 1010 with
IDA pattern will continue to be governed in accordance with the
terms and conditions of their appointment.
(iii) The pay revision for those employees in respect of whom the
recommendations are hereby being directed, to be implemented
hereafter, will take place only as and when similar changes are
effected for the Central Government employees. These employees
will, however, continue to enjoy the option to switch over to the
IDA pattern of the scales of pay etc. on a voluntary basis.
(iv) The various recommendations made in the Report will be
implemented with effect from the dates as follows. These dates, are
broadly in conformity with those specified in the Report:"
11. Pursuant to the aforesaid order of the Supreme Court, the
National Projects Construction Corporation Limited5 issued an
Office Order of 05 July 1990 seeking to implement the various
recommendations which had been made by the HPPC. However, and
insofar as the aspect of foreign allowance is concerned, in paragraph
3.3 it was observed as follows: -
"3.3 The question of revision of pay scale and foreign allowance
admissible to employees posted in Iraq is under examination and a
further communication will follow."
12. Since the respondents failed to undertake a revision of pay scale
Corporation
and foreign allowances admissible to employees posted in Iraq, the
petitioners approached this Court by way of the writ petition in
question.
13. The learned Single Judge has on a consideration of Rule 5 held
that a prerogative writ for the purposes of commanding the
respondents to revise scales of pay would be clearly unmerited bearing
in mind the legal position as enunciated consistently by the Supreme
Court.
14. This becomes apparent from a reading of paragraph 5 which is
reproduced hereinbelow: -
"5. Before I proceed further in this case, it would be necessary to
refer to the dictum of the Supreme Court in the case of Indian
Drugs and Pharmaceuticals Ltd. vs. Workmen (2007) 1 sec 408
wherein the Supreme Court has categorically observed that Courts
should not substitute itself for the executive so as to decide what
should be the scales of pay which should be granted to its officers.
The Supreme Court has cautioned against judicial activism
inasmuch as the finances of an employer are considered by the
employer so as to decide what should be the emoluments which
should be granted to its employees. Paras 37 and 40 of the said
judgment are relevant and the same read as under:-
"37. Creation and abolition of posts and regularization are
purely executive functions vide P. U.Joshi v. Accountant
General (2003) 2 sec 632: 2003 see (L&S) 191. Hence, the
court cannot create a post where none exists. Also, we cannot
issue any direction to absorb the respondents or continue them
service, or pay them salaries of regular employees, as these are
purely executive functions. This Court cannot arrogate to it's
the powers of the executive or legislature. There is abroad
separation of powers under the Constitution, and the judiciary,
too, must know its limits.
40. The courts must, therefore, exercise judicial restrain, and
not encroach into the executive or legislative domain. Orders
for creation of posts, appointment on these posts,
regularization, fixing pay scales, continuation in service,
promotions, etc., are all executive or legislature functions, and
it is highly improper for Judges to step into this sphere, except
in a rare and exceptional case. The relevant case-law and
philosophy of judicial restrain has been laid down by the
Madras High Court in great detail Rama Muthuramalingam v.
Dy. Supdt. Of Police AIR 2005 Mad 1 and we fully agree with
the views expressed therein.""
15. The Learned Judge has thereafter proceeded to observe that in
case the appellants were to be accorded parity with allowances
payable to non-IFS officers of the Union Government, it would clearly
be violative of Rule 5 itself. This finding rests on an interpretation of
Rule 5 as rendered by the learned Single Judge bearing in mind the
usage of expression, "will not exceed" as appearing in that Rule.
16. This becomes evident from a reading of paragraph 7, which is
reproduced hereinbelow: -
"7. In the present case, I agree with the interpretation urged on
behalf of respondent no.2/employer with respect to Rule 5, that this
rule cannot be read to mean that the foreign allowances of the
employees of the respondent. no.2 automatically have to be
enhanced or are to be all the times equal to foreign allowances
which are payable to Non-IFS officers of the Government of India.
If I do so, it would amount to doing violence to the language of
Rule-5 inasmuch as the rule categorically provides that if there
have to be changes, circulars/orders will be issued by the
respondent no.2 from time to time. The very first line of Rule 5
makes this position crystal clear. Also the expression "will not
exceed" cannot be read to mean "will be equal to" for granting the
petitioners at all points of time the same foreign allowances which
are paid to the Non-IFS officers of the Government of India."
17. The learned Single Judge has thereafter also taken into
consideration the position of the appellants while posted in Iraq
drawing salaries and emoluments far greater than those claimed by the
employees of the respondent no.2 while posted in India.
18. While dealing with these and other aspects, the learned Single
Judge held as under:-
"9. A reading of the aforesaid letter shows that nowhere the
respondent no.2 has used any language therein that at all points of
time, the respondent no.2 will grant its employees who were posted
in Iraq, the same foreign allowances as are paid to the Non-IFS
officers of the Government of India. This letter refers to the fact
that its rules are based upon the rules for Non-IFS officers and this
language cannot mean that at all points of time the foreign
allowances which are payable to the Non-IFS officers, will be
equal to the foreign allowances to be paid to the employees of the
respondent no.2 who are posted in Iraq. Surely Central Government
employees form a different class, and every PSU depending upon
its financial condition can always decide whether or not to adopt
the rules of the Central Government or adopt them in variation or
not at all adopt them as stated in the judgment of the Supreme
Court in Indian Drugs and Pharmaceuticals Ltd.(supra). Courts
have no powers to impose upon an employer-organization
directions for fixing of monetary emoluments to its employees.
10. I may note that the monetary emoluments which are paid to
officers of the respondent no.2, who are posted in Iraq, are
otherwise considerably higher than those employees of the
respondent no.2 who are posted in India, as per the arguments as
urged before me by the counsel for the respondent no.2. Also, there
was no confined bindingness upon the petitioners to necessarily
continue in Iraq, and if the petitioners were allegedly feeling the
pinch of any higher costs, they at any point of time could have
requested for their posting back to India. Obviously, the petitioners
never did this because surely, the emoluments with respect to their
posting in Iraq were far better than the emoluments which were
paid to the employees in India serving the respondent no.2.
Therefore, I do not find petitioners, at this stage can claim any
enhancements in the foreign allowances, much less in the absence
of any circulars issued by the respondent no.2 in this regard."
19. Before us the challenge as laid in the writ petition was reiterated
with it being contended that the respondents never took a formal
decision consequent to the promise that was held out and stood
embodied in the Office Order of 05 July 1990. It was submitted that,
in fact, a new case was set up in the counter affidavit with it being
contended that the Office Order of 05 July 1990 were to be applicable
only in respect of employees who are posted in India. It was submitted
that although pay scales, DA and other allowances were duly revised
pursuant to the recommendations of the HPPC, the respondents clearly
failed to undertake an identical exercise insofar as foreign allowances
was concerned.
20. Having noted the submissions which were addressed before us
on this appeal as well as the record of the proceedings as captured by
the learned Single Judge in the judgment impugned, we find no
ground to interfere with the view as expressed or the construction
liable to be accorded to Rule 5.
21. As is apparent from a close reading of Rule 5, the employees of
respondent no.2 while serving overseas were entitled to a foreign
allowance payable at such rates and subject to such conditions as were
to be prescribed by the respondent from time to time. The Proviso to
Rule 5 in unambiguous terms provided that those allowances would
not exceed the rates of foreign allowances applicable to non-IFS
officers.
22. The Rule thus is clearly not demonstrative of an intent to accord
parity in respect of foreign allowances payable to employees of the
respondent and those that were being drawn by the other officers of
the Union Government. The usage of the expression, "shall not
exceed" was clearly indicative of the intent of the framers to prescribe
a benchmark which would not be liable to be exceeded in any
circumstance. Since the rule itself used the aforenoted expression, the
submission of parity was clearly misconceived.
23. We are further of the opinion that Rule 5 did not create any
interplay or interdependence between foreign allowances and DA. All
that was prescribed was that the foreign allowance would be payable
at such rates and would be subject to such conditions as were to be
prescribed by the respondent-Corporation from time to time.
24. That then takes us to the principal question of whether a
prerogative writ could have been issued commanding the respondent
to necessarily revise the foreign allowance and which was an aspect
which was alluded to even in the Office Order of 05 July 1990.
25. In our considered opinion, the learned Single Judge has
correctly recognized the legal position which endures in this respect
while rendering observations in paragraph 5 of the judgment. It is by
now well settled, that the pay structure and allowances that are liable
to be claimed by employees or officers is a matter clearly beyond the
ken of the power of judicial review that stands conferred by Article
226 of the Constitution. It is ultimately for the employer bearing in
mind all relevant factors to create a pay and remuneration structure as
may be considered appropriate and expedient. The Court while
invoking its powers under Article 226 of the Constitution would
clearly not be justified in undertaking such an exercise.
26. We in this regard take into consideration the decision of the
Supreme in Union of India vs. Indian Navy Civilian Design
Officers Association and Another6, where the legal position was
enunciated as follows: -
"9. Before adverting to the rival contentions raised by the learned
counsels for the parties, it deserves to be noted that the power of
judicial review of the High Courts in the matter of classification of
posts and determination of pay scale is no more res integra. It has
been consistently held by this Court in plethora of decisions that
equation of posts and equation of salaries is a complex matter
which is best left to an expert body unless there is cogent material
on record to come to a firm conclusion that a grave error had crept
in while fixing the pay scale for a given post and the interference of
the Court was absolutely necessary to undo the injustice.
10. In State of U.P. v. J.P. Chaurasia1, while answering the
questions as to whether the Bench Secretaries in the High Court of
Allahabad were entitled to pay scale admissible to the Section
Officers and whether the creation of two grades with different
scales in the cadre of Bench Secretaries who were doing the same
and similar work was violative of the right to have "equal pay for
equal work". This Court observed as under:--
"18. The first question regarding entitlement to the pay
scale admissible to Section Officers should not detain us
longer. The answer to the question depends upon several
factors. It does not just depend upon either the nature of
work or volume of work done by Bench Secretaries.
Primarily it requires among others, evaluation of duties
and responsibilities of the respective posts. More often
functions of two posts may appear to be the same or
similar, but there may be difference in degrees in the
performance. The quantity of work may be the same, but
quality may be different that cannot be determined by
relying upon averments in affidavits of interested parties.
The equation of posts or equation of pay must be left to
the executive Government. It must be determined by
expert bodies like Pay Commission. They would be the
best judge to evaluate the nature of duties and
responsibilities of posts. If there is any such determination
by a Commission or Committee, the court should normally
accept it. The court should not try to tinker with such
2023 SCC OnLine SC 173
equivalence unless it is shown that it was made with
extraneous consideration."
11. The afore-stated ratio was followed by this Court in Union of
India v. Makhan Chandra Roy2. Again, in Secretary, Finance
Departmentv. West Bengal Registration Service Association3, the
claim of Sub-Registrars of West Bengal Registration Service
claiming parity in pay scale with Munsiffs on the basis that Sub-
Registrars were conferred gazetted status, was examined by this
Court. It was elaborately observed in para 12 as under:--
"12. We do not consider it necessary to traverse the case
law on which reliance has been placed by counsel for the
appellants as it is well settled that equation of posts and
determination of pay scales is the primary function of the
executive and not the judiciary and, therefore, ordinarily
courts will not enter upon the task of job evaluation which
is generally left to expert bodies like the Pay
Commissions, etc. But that is not to say that the Court has
no jurisdiction and the aggrieved employees have no
remedy if they are unjustly treated by arbitrary State
action or inaction. Courts must, however, realise that job
evaluation is both a difficult and time-consuming task
which even expert bodies having the assistance of staff
with requisite expertise have found difficult to undertake
sometimes on account of want of relevant data and scales
for evaluating performances of different groups of
employees. This would call for a constant study of the
external comparisons and internal relativities on account
of the changing nature of job requirements. The factors
which may have to be kept in view for job evaluation may
include (i) the work programme of his department (ii) the
nature of contribution expected of him (iii) the extent of
his responsibility and accountability in the discharge of his
diverse duties and functions (iv) the extent and nature of
freedoms/limitations available or imposed on him in the
discharge of his duties (v.) the extent of powers vested in
him (vi) the extent of his dependence on superiors for the
exercise of his powers (vii) the need to co-ordinate with
other departments, etc. We have also referred to the
history of the service and the effort of various bodies to
reduce the total number of pay scales to a reasonable
number. Such reduction in the number of pay scales has to
be achieved by resorting to broad banding of posts by
placing different posts having comparable job charts in a
common scale. Substantial reduction in the number of pay
scales must inevitably lead to clubbing of posts and grades
which were earlier different and unequal. While doing so
care must be taken to ensure that such rationalisation of
the pay structure does not throw up anomalies. Ordinarily
a pay structure is evolved keeping in mind several factors,
e.g., (i) method of recruitment, (ii) level at which
recruitment is made, (iii) the hierarchy of service in a
given cadre, (iv) minimum educational/technical
qualifications required, (v.) avenues of promotion, (vi) the
nature of duties and responsibilities, (vii) the horizontal
and vertical relativities with similar jobs, (viii) public
dealings, (ix) satisfaction level, (x) employer's capacity to
pay, etc. We have referred to these matters in some detail
only to emphasise that several factors have to be kept in
view while evolving a pay structure and the horizontal and
vertical relativities have to be carefully balanced keeping
in mind the hierarchical arrangements, avenues for
promotion, etc. Such a carefully evolved pay structure
ought not to be ordinarily disturbed as it may upset the
balance and cause avoidable ripples in other cadres as
well. It is presumably for this reason that the Judicial
Secretary who had strongly recommended a substantial
hike in the salary of the Sub-Registrars to the Second
(State) Pay Commission found it difficult to concede the
demand made by the Registration Service before him in
his capacity as the Chairman of the Third (State) Pay
Commission. There can, therefore, be no doubt that
equation of posts and equation of salaries is a complex
matter which is best left to an expert body unless there is
cogent material on record to come to a firm conclusion
that a grave error had crept in while fixing the pay scale
for a given post and Court's interference is absolutely
necessary to undo the injustice."
12. In State of Haryana v. Charanjit Singh4, a three-judge Bench in
a referred matter considered whether the doctrine of "equal pay for
equal work", was an abstract doctrine, and observed thus:--
"19. Having considered the authorities and the
submissions we are of the view that the authorities in the
cases of Jasmer Singh[(1996) 11 SCC 77 : 1997 SCC
(L&S) 210 : AIR 1997 SC 1788 : (1997) 2 LLJ 667], Tilak
Raj [(2003) 6 SCC 123 : 2003 SCC (L&S) 828], Orissa
University of Agriculture & Technology [(2003) 5 SCC
188 : 2003 SCC (L&S) 645 : (2003) 2 LLJ 968] and Tarun
K. Roy [(2004) 1 SCC 347 : 2004 SCC (L&S) 225] lay
down the correct law. Undoubtedly, the doctrine of "equal
pay for equal work" is not an abstract doctrine and is
capable of being enforced in a court of law. But equal pay
must be for equal work of equal value. The principle of
"equal pay for equal work" has no mechanical application
in every case. Article 14 permits reasonable classification
based on qualities or characteristics of persons recruited
and grouped together, as against those who were left out.
Of course, the qualities or characteristics must have a
reasonable relation to the object sought to be achieved. In
service matters, merit or experience can be a proper basis
for classification for the purposes of pay in order to
promote efficiency in administration. A higher pay scale
to avoid stagnation or resultant frustration for lack of
promotional avenues is also an acceptable reason for pay
differentiation. The very fact that the person has not gone
through the process of recruitment may itself, in certain
cases, make a difference. If the educational qualifications
are different, then also the doctrine may have no
application. Even though persons may do the same work,
their quality of work may differ. Where persons are
selected by a Selection Committee on the basis of merit
with due regard to seniority a higher pay scale granted to
such persons who are evaluated by the competent
authority cannot be challenged. 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" requires
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. These are
not matters where a writ court can lightly interfere.
Normally a party claiming equal pay for equal work
should be required to raise a dispute in this regard. In any
event, the party who claims equal pay for equal work has
to make necessary averments and prove that all things are
equal. Thus, before any direction can be issued by a court,
the court must first see that there are necessary averments
and there is a proof. If the High Court is, on basis of
material placed before it, convinced that there was equal
work of equal quality and all other relevant factors are
fulfilled it may direct payment of equal pay from the date
of the filing of the respective writ petition. In all these
cases, we find that the High Court has blindly proceeded
on the basis that the doctrine of equal pay for equal work
applies without examining any relevant factors."
13. In Union of India through Secretary, Department of Personnel,
Public Grievances and Pensions v. T.V.L.N Mallikarjuna Rao5,
this Court reiterated the said position:--
"26. The classification of posts and determination of pay
structure comes within the exclusive domain of the
executive and the Tribunal cannot sit in appeal over the
wisdom of the executive in prescribing certain pay
structure and grade in a particular service. There may be
more grades than one in a particular service."
14. In view of the afore-stated legal position, it clearly emerges that
though the doctrine "equal pay for equal work" is not an abstract
doctrine and is capable of being enforced in a Court of Law, the
equal pay must be for equal work of equal value. The equation of
posts and determination of pay scales is the primary function of the
Executive and not of the Judiciary. The Courts therefore should not
enter upon the task of job evaluation which is generally left to the
expert bodies like the Pay Commissions which undertake rigorous
exercise for job evaluation after taking into consideration several
factors like the nature of work, the duties, accountability and
responsibilities attached to the posts, the extent of powers
conferred on the persons holding a particular post, the promotional
avenues, the Statutory rules governing the conditions of service,
the horizontal and vertical relativities with similar jobs etc. It may
be true that the nature of work involved in two posts may
sometimes appear to be more or less similar, however, if the
classification of posts and determination of pay scale have
reasonable nexus with the objective or purpose sought to be
achieved, namely, the efficiency in the administration, the Pay
Commissions would be justified in recommending and the State
would be justified in prescribing different pay scales for the
seemingly similar posts. A higher pay scale to avoid stagnation or
resultant frustration for lack of promotional avenues or frustration
due to longer duration of promotional avenues is also an acceptable
reason for pay differentiation. It is also a well-accepted position
that there could be more than one grade in a particular service. The
classification of posts and the determination of pay structure, thus
falls within the exclusive domain of the Executive, and the Courts
or Tribunals cannot sit in appeal over the wisdom of the Executive
in prescribing certain pay structure and grade in a particular
service."
27. On an overall conspectus of the above, we find no justification
to interfere with the judgment rendered.
28. The appeal fails and shall stand dismissed.
YASHWANT VARMA, J.
RAVINDER DUDEJA, J.
OCTOBER 24, 2024/vp
