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2008 DIGILAW 382 (JK)

Union Of India v. D. S. Ahluwalia

2008-10-14

MANMOHAN SARIN, SUNIL HALI

body2008
Per Manmohan Sarin, CJ: 1. Appellants, Union of India through its Secretary in the Ministry of Home & Finance and the Director of General of Border security Force have filed this Letters Patent Appeal, aggrieved by the judgment dated May 7, 2004 passed by the learned Single Judge in SWP no.2859/2001. The learned- Single Judge by the impugned judgment, allowed the writ petition. Operative part of the impugned judgments reproduced for facility of reference: In view of the aforesaid facts and circumstances of the case, I allow the writ petition. The petitioner and other Law Officers in the BSF are held entitled to parity with their counter parts in the Coast Guards and NSG right from the stage of IV Pay Commission, i.e., 1.1.1986. They would, however, be entitled to arrears of upgraded posts with effect from 1st Jan, 1996. For the period prior 1.1.1996, their pay be fixed notionally from the dates they are holding the posts as Chief Law Officer and Law Officers Grade-l, at par with their counter parts as mentioned above. I further direct the respondents to work out the financial benefits to which the petitioner and other Law Officers are entitled and release the same within a period of three months from the date a certified copy of this order is made available to the respondents. 2. Appellants contention is that the Cabinet had approved up-gradation / creation of the posts of Chief Law Officer and Law Officers Grade-l to bring them at par with the post of Chief Law Officers and Law Officers Grade-l in the National Security Guards and Coast Guards only with effect from August 28, 1998. It is, accordingly, urged that it is from this date that any claim for parity with the posts of Chief Law Officer and Law Officer Grade-l in the National Security Guards and Coast Guard can be entertained. 3. This case has a chequered history. For appreciation of the matter in controversy, facts relevant thereto, shorn of unnecessary details, are being noticed below. (i). Respondent, D.S. Ahluwalia, was appointed as a Law Officer Grade-I in BSF on October 8, 1996. He filed SWP no.518/1997 seeking to bring the cadre of Law Officers Grade-l in the BSF at par with their counter parts in the National Security Guards and Coast Guards respectively, with effect from the date of implementation of the report of IV Pay Commission. He filed SWP no.518/1997 seeking to bring the cadre of Law Officers Grade-l in the BSF at par with their counter parts in the National Security Guards and Coast Guards respectively, with effect from the date of implementation of the report of IV Pay Commission. This was sought to be done on the principle of equal pay for equal work. He also sought removal of disparity and anomaly in their pay scales and prayed for the same be brought at par with their counter parts in National Security Guards and Coast Guards. In the proceedings in the writ petition, the Court vide order dated April 2, 1997, directed that representation of the respondent officer and his colleagues be considered by the empowered committee. Further directions were issued to the Secretary to have the representation considered. The appellants opposed the same contending in the counter that the posts of Chief Law Officer, Law Officers-I and Law Officers-II in the BSF were created in February, 1969 in the pay scales as applicable to the Additional Government Advocates, Deputy Government Advocate and Junior Law Officers of the Ministry of Law and Justice. The scales of pay of the Law Officers of the Ministry of Law and Justice were also made applicable to the Law Officers of the BSF as revised from time to time. (ii) The Chief Law Officer and Law Officers of BSF were treated to be distinct from the General Duty Officers of the BSF. Even though they were equated later on with the corresponding General Duty Officers for the purpose of BSF Act and the Rules, but they were not entitled to pay scales which were applicable to the General Duty Officers as they had been drawing the pay scales applicable to Law Officers working in the Ministry of Law and Justice. The Writ Court had directed the appellants to consider the case of the respondent for up-gradation and redressal of the grievances, to be put up before the Cabinet and the matter be processed within a time bound framework. (iii) In compliance with the above order dated March 16, 1998, the Ministry of Home Affairs with the approval of the Cabinet issued order dated August 24, 1998 upgrading the post of Law Officers of BSF to bring them at par with the Law Officers in the Coast Guards. (iii) In compliance with the above order dated March 16, 1998, the Ministry of Home Affairs with the approval of the Cabinet issued order dated August 24, 1998 upgrading the post of Law Officers of BSF to bring them at par with the Law Officers in the Coast Guards. The respondent filed objections to the aforesaid order of up-gradation praying that the appellants be directed to grant the upgraded pay scale and rank to the Law Officers of BSF with effect from January 1, 1996. The aforesaid writ petition was disposed-of by the Writ Court by passing an order dated February 16, 1999. Operative portion of the said order is reproduced for facility of reference: As indicated, the above is the matter on which respondent Union of India is to take a decision at its own level. It is however hoped that Union of India would give full respect to the observations made by the Honble Supreme Court in the writ petition referred to above (writ petition No. 1193/1986 in the case of G.S. Ratheesh Kumar and others vs. Union of India and others decided on 14.12.1987 by the Honble Supreme Court of India). (iv) The appellants duly considered the case but the prayer for grant of upgraded pay scale with effect from January 1, 1996 was declined and a speaking order was passed by the Ministry of Home Affairs on June 22, 1999. Thereupon CMP no. 1980/1999, seeking a direction to appoint the respondent and other Law Officers to the upgraded posts from January 1, 1996, if not earlier, and to release their pay and arrears immediately, was filed. During the course of further proceedings, the writ petition which had been disposed of was reviewed. Liberty was granted to amend the will petition or for taking other steps. Union of India took up the position that directions given by the Court had been duly complied with in letter and spirit and nothing survived in the CMP. The Court finally disposed of the CMP and consigned it to record in view of the circumstances. It is in this background that the writ petition in which the impugned judgment was passed from which the present appeal emanates, came to be filed. 4. Respondent filed SWP no. 2889/2001 seeking quashment of order dated June 22, 1999 as also partial quashment of order dated August 24, 1998. It is in this background that the writ petition in which the impugned judgment was passed from which the present appeal emanates, came to be filed. 4. Respondent filed SWP no. 2889/2001 seeking quashment of order dated June 22, 1999 as also partial quashment of order dated August 24, 1998. The appellants had filed their objections to the writ petition giving the details of the cadre review of the Law Officers and General Duty Officers. It was averred that there was no comparison of pay scales between the General Duty Post and Law Officers of the BSF, the latter having been created in the pay scale of Additional Government Advocates, Deputy Government Advocates and Junior Law Officers of Ministry of Law and Justice respectively and the same being revised on the recommendation of III Pay Commission for the above categories of Minister of Law and Justice. These were further revised upwards and the upward revised pay scales were also made applicable to the Law Officers of the BSF. The Law Officers of BSF could not form part of the General Duty officers of the BSF. The appellants justified the non-grant of parity between General Duty Officers of BSF with the Law Officers. The appellants also brought out that even as per the recruitment rules framed on the instruction of Department of Personnel and Training, the pay scales were different for Law Officers of BSF and Law Officers of Coast Guard. The recruitment rules of Coast Guard were yet to be amended. Appellants also sought to urge that there was quantitative and qualitative difference in the duties and responsibilities in the two organizations. Mere similarity in functions and duties was not a decisive factor to hold that the Law Officers in BSF were entitled to parity in pay scales with Law Officers in Coast Guard or NSG. 5. It may be noticed at this stage itself that in view of the up-gradation / creation of posts of Chief Law Officer and Law Officers Grade-1 in BSF with effect from August 24, 1998, it is not necessary to go into the aspects of their being quantitative and qualitative difference or similarity in the respective functions of Chief Law Officer and Law Officers. The surviving question before the Court in this appeal is whether the direction of the learned Single Judge, directing fixation of notional pay from the report of IV Pay Commission for the period prior to January 1, 1996 and payment of arrears from January 1, 1996 is sustainable or the same would become applicable from August 24, 1998 i.e., when the up-gradation / creation was done and the recruitment rules were amended. 6. The appellants position before the Writ Court was that the Chief Law Officer and Law Officers Grade-I in the BSF were created in the year 1996 in the pay scale of Additional Government Advocates and Deputy Government Advocates of Ministry of Law and Justice after the III Pay Commission. Scales of Chief Law Officer and Additional Government Advocates were revised to Rs. 1800-2000 and pay scale of Law Officers Grade-I and Deputy Government Advocates was revised to Rs. 1500-1800. Subsequently, the IV Pay Commission revised the pay scale of Chief Law officer and Additional Government Advocate to Rs. 4100-5300 and that of Law Officers and Deputy Government Advocates to Rs. 3700-5000. The pay seals of Rs. 4100-5300 was further revised to Rs. 14300-18300 and pay scale of Rs. 3700-5000 to Rs. 12000-16500 by the V Pay Commission. Upto the passing of the order dated August 24, 1998 the above arrangement continued. 7. It is the Appellants case that the Chief Law Officer and Law Officers-Grade-I which were existing on the pattern of Law Officers of Ministry of Law and Justice were abolished and simultaneously created at a higher level, i.e., in the pay scale of Rs. 16400-20000 and Rs. 14300-18300 respectively. The posts of Chief Law Officer and Law Officers Grade-I in the BSF were thus created as per norms by virtue of order dated 24.8.98. It was not simply to be treated as a case of up-gradation to bring them at par with their counter parts. Prior to the said date, the Chief Law Officer and Law Officers in Coast Guards and National Security Guards were also being paid the replacement pay scales on the recommendation of the Pay Commission. The Law Officers of BSF have also got the replacement pay scales corresponding to their pre-revised pay scales as per the recommendation of the V Pay Commission. The Law Officers of BSF have also got the replacement pay scales corresponding to their pre-revised pay scales as per the recommendation of the V Pay Commission. It cannot not be ignored that the Law Officers in the BSF had been getting pay scales different from the those of the Law Officers of Coast Guard and National Security Guards right since the very inception from 1965 upto August 24, 1998, when a decision was taken by the Government that the existing incumbents will be appointed against the upgraded posts only when they fulfill the requirement of the amended recruitment rules and the post would be operative in the present grade till regular appointments were made in the newly created posts in the scales noted above. 8. To put it simply, it is the appellants position that the cut off date is to be determined based on the creation of posts in the higher grade. Let us notice the legal position in this regard. Firstly on the issue of application of the principle of equal pay for equal work reference is invited by appellants to State of Haryana v. Jasmer Singh, reported at (1996) 11 SCC 77. In the cited case, Court was considering the question of parity in implementation and application of the principle of equal pay for equal work. It involved Mali-cum-Chowkidars and Pump Operators, who were appointed on daily wage basis by State of Haryana. They had sought parity with the regular workmen. The Court held that they could only get minimum wages as applicable to them. These persons could not be treated to be at par with the regular workmen holding similar posts. They were not required to possess the qualifications prescribed for regular workers. In this connection, the Court held: The principle of equal pay for equal work is not always easy to apply. There are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. There may be differences in educational or technical qualifications which may have a bearing on the skills which the holders bring to their job although the designation of the job may be the same. There may also be other considerations which have relevance to efficiency in service which may justify differences in pay scales on the basis of criteria such as experience and seniority, or a need to prevent stagnation in the cadre, so that good performance can be elicited from persons who have reached the top of the pay scale. There may be various, other similar considerations which may have a bearing on efficient performance in a job. The evaluation of such jobs for the purposes of pay scale must be left to expert bodes and, unless there are any mala fides, its evaluation should be accepted. 9. The next authority to which reference is invited and on which reliance was placed by the respondent is Alvaro Noronha Femora v Union of India, reported at AIR 1999 SC 1356. This was a case where the Judicial Officers of the then Union Territory of Goa sought parity in scales of pay with their counter parts in Delhi. The pay scales of Delhi Judicial Officers were revised based on the recommendation of the Pay Commission at a higher level, while those of Goa Judicial Officers were raised only marginally. The Division Bench of the High, Court proceeded on the basis that it was not established that the posts of Judicial. Officers in Delhi and Goa were equal or were comparable. It held that the averments in the petition were not supported by any material and it could not be held that the nature of the duties of the officers were identical. The Supreme Court repelled the same, holding that nature of work was same. Further that differences in pendency and backlog may be there but that would not make the work clone any different. The Apex Court held that nature of work of District and Sessions Judges at Delhi and Goa was the same, duty hours were substantially the same and pendency was not a factor to be considered. It applied the principle of equal pay for equal work and directed the payment of arrears. The Apex Court held that nature of work of District and Sessions Judges at Delhi and Goa was the same, duty hours were substantially the same and pendency was not a factor to be considered. It applied the principle of equal pay for equal work and directed the payment of arrears. The above case is distinguishable on facts. It would not advance respondents case as it did not involve any upgradation/creation of post or determination of cut off date. 10. Reference is next invited to judgment in Rao Somashekara v State of Karnataka, reported at (1997) 7 SCC 649. The above cited case is significant as regards the determination of the cut off date or the date from which the benefit is to be accorded and the consideration and relevant factors therefore. The issue arising for consideration was the date from which the secondary school teachers of the former State of Hyderabad allotted to the State of Karnataka were to he accorded the revision of pay scales. The observations of the Supreme Court contained in paragraph 12 of the judgment, which lay down the law on the subject, are reproduced for facility of reference: We are of the view that the State Government had before it the report of the Commission and on that basis it took a decision that the disparities should stand eliminated prospectively from 1.1.1970 and not retrospectively from 1.1.1957. The question as to whether the date from which the scales ought to have been equated should be 1.1.1970 or an anterior or a later date was a matter which had to be arrived at by taking all factors into account. It will be difficult for this Court to decide as to from what date the continuance of the existing scales should be treated as discriminatory or the continuance would lose its temporary character arising out of Section 119 of the States Reorganization Act. It may be that the State of Karnataka felt that the grievance of the non-allotted Primary School Teachers whose salaries were lesser than the salaries of non-allotted Secondary School Teachers was a matter of graver concern requiring redressal even as late as 1979 or 1986. It may be that the State of Karnataka felt that the grievance of the non-allotted Primary School Teachers whose salaries were lesser than the salaries of non-allotted Secondary School Teachers was a matter of graver concern requiring redressal even as late as 1979 or 1986. Merely because the grievances of non-allotted primary teachers were remedied even after considerable,-lapse of time, we cannot say that grievances of Secondary School Teachers - even if it was late - should have also been redressed for the period 1.1.1957 to 31.12.1969. Above all, the financial burden involved was also a matter of relevant consideration. We are not therefore inclined to hold that the cut off date of 1.1.1970 fixed after the report of Justice Tukol Commission, in regard to Secondary School Teachers, is arbitrary or violative of Article 14. In any event, principle of laches applies equally to applications under Article 32 of the Constitution of India. 11. Reliance was also placed by the appellants on State of Haryana v. Haryana Civil Secretariat Personal Staff Association, reported at (2002) 6 SCC 72. The said authority lays down the situations in which the Court should interfere with an administrative decision pertaining to pay fixation and pay parity. The Court proceeded on the basis that to have equal pay for equal work and parity in employment was not a fundamental right of an employee, although it may be a constitutional goal. While dealing with the case of Personal Assistants working in the Civil Secretariat of the State Government and revision of Personal Assistants working in the Civil Secretariat of the Central Government, the under mentioned observations of the Court in paragraph 10 of the judgment are significant. The Apex Court observed that courts should not ordinarily interfere in administrative decisions and recommended exercise of restraint ordinarily in matters of fixation of pay, determination of parity in duties and responsibilities etc. It observed inter alia: ...The Claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. It observed inter alia: ...The Claim of equal pay for equal work is not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors, some of which have been noted by this Court in the decided cases, are to be considered keeping in view the prevailing financial position and capacity of the State Government to bear the additional liability of a revised scale of pay. It is also to be kept in mind that the priority given to different types of posts under the prevailing policies of the State Government is also a relevant factor for consideration by the State Government. In the context of the complex nature of issues involved, the far reaching consequences of a decision in the matter and its impact on the administration of the State Government, courts have taken the view that ordinarily courts should not try to delve deep into administrative decisions pertaining to pay fixation and pay parity. That is not to say that the matter is not justiciable or that the courts cannot entertain any proceeding against such administrative decision take by the Government. The courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter. Even in a case where the court holds the order passed by the Government to be unsustainable, then ordinarily a direction should be given to the State Government or the authority taking the decision to reconsider the matter and pass a proper order. The court should avoid giving a declaration granting a particular scale of pay and compelling the Government to implement the same. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of employees, one in the State Secretariat and the other in the Central Secretariat. As noted earlier, in the present case the High Court has not even made any attempt to compare the nature of duties and responsibilities of the two sections of employees, one in the State Secretariat and the other in the Central Secretariat. It has also ignored the basic principle that there are certain rules, regulations and executive instructions issued by the employers which govern the administration of the cadre. 12. Lastly, reliance was placed by learned counsel for the appellants on an unreported Division Bench decision of the High Court of Delhi in Union of India v Lal Bahadur Singh, LPA no. 437/2000 decided on November 29, 2005 with regard to the cut off date or applicable date. This was a case concerning the claim of Inspectors, Sub-inspectors and Constables of paramilitary organisations like ITBP, CRPF, BSF and Armed Rifles and CISF, working in the Central Police Organization (CPO) who alleged discrimination against them on being paid a lower salary than the officers of similar ranks working in Delhi Police, Intelligence Bureau (IB) and Central Bureau of Investigation (CBI). The claim of the employees seeking parity in pay scales with employees working in Delhi Police, Intelligence Bureau and Central Bureau of Investigation with effect from January 1, 1996 was based on the Central Government having accepted and implemented the report of V Central Pay Commission. The Division Bench held the following in paragraph 23 of the judgment: We may at this stage refer to the decision of the Supreme Court in Union of India & others v Secretary, Madras Civil Audit and Accounts Association & another reported in (1992) 2 SCC 1, wherein the Supreme Court in paragraphs 10 and 11 has held that the terms of reference of the Pay Commission applied to all the categories of government servants. But the question as to from which date a category should get the higher scale of pay is separate and distinct. While answering the said question posed, it was held by the Supreme Court that identification of the posts and the up-gradation cannot be treated as mere administrative difficulties and that the implementation of the recommendations of the Pay Commission according to the terms thereof itself involved this exercise of creation of posts after identification, which naturally took some time and that after such up-gradation officers in both the wings who are doing equal work, were being paid equal pay. The Supreme Court went on to held that it cannot be said to be a situation as well on January 1, 1986 also and in that view of the matter the principle of equal pay for equal work was not attracted irrespective of the fact that the posts were identified and upgraded in the year 1987. In paragraph 4 of the said judgment the Supreme Court has stated that it is clearly indicated in the report of the Pay Commission that in regard to the recommendations in other matters that the Government will have to take specific decision to give effect to them from a suitable date keeping in view all the relevant aspects including the administrative and accounting work. In paragraph 5 of the said judgment it was also held that new posts had to be identified as indicated by the Pay Commission and thereafter the implementation of the recommendations in respect of the higher scales could be done. It was further held that a combined reading of the Pay Commission report and the office memo makes it abundantly clear that the second set of the recommendations could only be given effect to after identifying the aforesaid posts. 13. From the foregoing, it would follow that when the Government considers the recommendations made by the Pay Commission and/or the anomaly committee is seized of the issues of cadre review, re-structuring or creation of posts etc., the said examination and exercise with regard to re-structuring, rationalisation in the cadre and the ranks and pay structure entails a detailed exercise and fixing a date from which the benefit is to be accorded. When such an exercise is undertaken by the State, a final decision is taken by the Government after looking into the cadre restructuring and rationalisation of the pay scales and fixing of an effective date for implementation of the said rationalisation end replacement thereof cannot be held to be arbitrary or irrational. The Court, accordingly, upheld the date from which the benefit was to be given. The Court, accordingly, upheld the date from which the benefit was to be given. The Delhi High Court while making the above observations, relied on Rao Somashekhara v State of Karnataka, (1997) 7 SCC 649 (supra), wherein the Supreme Court had observed that it is a matter to be arrived at after taking into account several factors, and it is difficult for the Court to decide as to the date from which new pay scales should be paid and when the continuance of existing pay scales should be treated as discriminatory. Further financial burden involved on the State in such cases is also a relevant consideration. The Court, therefore, upheld the applicability of the upgraded pay scales from the date of issuance of the notification. 14. The present case is also to be considered in the light of the judicial pronouncements noticed above and the principles emerging therefrom. Firstly, equal pay for equal work is the constitutional goal and not a fundamental right. In the instant case, we find merit in the case of the appellants that the up-gradation and/or creation of posts in the higher scale of Chief Law Officer and Law Officers Grade-I was a sine-quo-non for grant of parity and benefit to the respondent and others. Even if in earlier proposals or proceedings it had been recognised that there was merit in their submission, the same could not be given effect to till the above up-gradation was approved by the Cabinet. Earlier the appellants had duly paid the revised scales as were applicable to the law officers of the Union Law Ministry holding the posts of Additional Government Advocates, Deputy Government Advocates and Junior Law Officers. Once the Cabinet decision had been taken in implementation of it, the creation of the upgraded posts or up-gradation was granted. It is, accordingly, from the said date that the respondent and other incumbents would be entitled for the benefit. 15. We, accordingly, allow the appeal and set aside the judgment of the learned Single Judge to the extent it holds that the respondent and other Law Officers of the BSF are entitled to parity with their counterparts in the Coast Guard and National Security Guards right from the stage of IV Pay Commission, i.e., from January 1, 1986 and also to notional fixation of pay for the period prior to it. We hold that the respondent and other Law Officers of BSF are entitled to parity and benefits from August 24, 1998 as held in terms of order dated June 22, 1999 which shall hold the field. Appeal is allowed in the above terms.