AR.Ansar v. Union of India & Ors.

In the High Court of Judicature at MadrasDated: 30.04.2009 Coram:The Hon’ble Mr.Justice M.SATHYANARAYANANW.P.No.29965 of 20081.Shri.AR.Ansar2.RS.Marathe3.J.Rajesh4.K.Pradeesh5.J.Rajan6.MK.Krishna Kumar 7.Sajith Kumar8.P.Murali Manohar9.A.Sathish Kumar10.Biju Philipose11.Naresh Kumar12.Milind S.Kunnure13.K.D.Taid14.Narender Singh15.Rajesh Kumar… PetitionersVersus1.Union of India, Service through theSecretary, Government of India, Ministry of Defence, Room No.101, South Block, New Delhi – 110 001.2.The Union of India, Service through theSecretary, Government of India, Ministry of Finance,Room No.134, North Block, New Delhi -110 001.3.The Chairman for VI Central Pay Commission,Implementation Cell, Ministry of Finance, North Block, New Delhi-110 001. 4.The Director General Coast Guard, Coast Guard Headquarters,National Stadium Complex, New Delhi-110 001. https://hcservices.ecourts.gov.in/hcservices/

5.The Commandar, Coast Guard Region (East), Fort St.George, Chennai-600 009.… RespondentsWrit Petition filed under Article 226 of the Constitution ofIndia, praying for the issuance of writ of Mandamus directing thefirst respondent to fix the scale of pay of the petitioners asYantriks at Rs.1,400-2,600 with effect from their respective datesof appointment, and scale of pay of Rs.5,000 – 8,000 with effectfrom 01.01.1996 and Rs.5,500 – 9,000 with effect from 10.10.1997 andto place them in Pay Band-2 with grade pay of Rs.4,200/- with effectfrom 01.01.2006 on par with the scales of pay applicable to CentralPolice Organisations like the Central Para Military Force (CPMF) andBorder Security Force (BSF). For Petitioners.. Mr.S.Kumarasamy,Senior Counsel for M/s Anitha More. For Respondents .. Mr.B.Santha Kumar for R1-R5-SPCG*******O R D E RThe petitioners who are in service of Indian Coast Guard RHQ(East), had filed this writ petition praying for the issuance of awrit of mandamus directing the first respondent to fix the scale ofpay with effect from particular dates and to place them in Pay Band-2 with Grade Pay of Rs.4,200/- with effect from 01.01.2006 on parwith the scales of pay applicable to Central Para Military Force(CPMF) and Border Security Force (BSF). 2. The petitioners came to be appointed in the service of CoastGuard in different capacities. As per the Amended Recruitment Rulesdated 7.4.1982, the scale of pay of Rs.950-1500, which came to berevised as per the recommendations of the IV Central Pay Commission.The educational qualification as per the old recruitment rules dated20.7.1979 was 10th +2 (Science and Maths). As per the AmendedRecruitment Rules, 1982, the essential educational qualificationcame to be revised as Matriculation + Diploma in Engineering. Inspite of educational qualification came to be changed as statedabove, the corresponding pay scales remain unchanged. Hence, on12.5.1997 a detailed representation was sent to the respondents 1 to3 through proper channel to upgrade the scale of the petitioners asper the recommendations made by V Central Pay Commission. However,the representation was not considered. 3. During January 1988, Supplementary Recruitment Orders wereissued under which, the post of Yantrik was made a promotional postfor which, the posts of Pradhan Navic and Uttam Navic (GeneralDuty) were made the feeder categories. In spite of it, as per VI https://hcservices.ecourts.gov.in/hcservices/ Central Pay Commission recommendations, the post of Uttam Navic andPradhan Navic have been placed in the scale of pay of Rs.4,000-6,000and Rs.4,500-7,000 with grade pay of Rs.2,400/- and Rs.2,800/-respectively in Pay Band-1. The promotional post of Yantrik inwhich feeder categories Uttam Navic and Pradhan Navic has also beenplaced in the pay scale of Rs.4,000-6,000 with grade pay ofRs.2,400/- in Pay Band-1. 4. The IV and V Central Pay Commissions were also recommendedthat the Scale of pay of all Coast Guard Personnel shouldcorrespond to the CPMF and BSF as the duties performed by them aresimilar in nature. In spite of such recommendations, the CentralGovernment has not implemented the same. The petitioners aggrievedby the inaction on the part of the appropriate authorities, hadfiled writ petition in the Circuit Bench of Calcutta High Court atPort Blair in W.P(AN) No.45 of 2001 praying for equal pay on parwith Sub-Inspectors/Inspectors in the technical Wing of BSF. TheCircuit Bench of Calcutta High Court vide judgment dated 4.12.2001,has disposed of the writ petition by requesting the Secretary,Ministry of Defence to decide about the feasibility of implementingthe request made by the petitioners within three months from thedate of receipt of the order. 5. The first respondent in compliance of the above said order,had considered the representations submitted by the petitioners andothers and found that it is not feasible to effect any changes inthe existing scale of pay of Yantriks in the Coast Guard. 6. The petitioners once again invoked the jurisdiction ofCircuit Bench of Calcutta High Court at Port Blair by filing W.P(AN)No. 160 of 2002, wherein the challenge was made to the order dated28.8.2002 passed by the first respondent. The Circuit Bench ofCalcutta High Court vide order dated 14.7.2003, has disposed of thewrit petition by requesting the first respondent to reconsider theirstand in accordance with the directions given in the order dated4.12.2001 made in W.P(AN)No. 45 of 2001. It has been indicated inthe said order that the first respondent has to find out whether thescale of pay payable to Yantriks, has been properly and correctlyfixed at the time when the qualification of Yantriks was impressedupon and if it is found that it is not correctly fixed, appropriatefixing of scale is to be done. Time limit of three months wasprescribed to complete the said exercise. The first respondent afterconsidering the order of Circuit Bench of Calcutta High Court, dated14.7.2003, has rejected the request by the order dated 9.10.2003. 7. The petitioners aggrieved by the certain observations madein the order dated 14.7.2003 in W.P(AN) No.160 of 2002, preferred anappeal in MAT No.16/2003, before the Division Bench of High Court ofCalcutta. While dismissing the said appeal the Division Bench https://hcservices.ecourts.gov.in/hcservices/ directed the official respondents not to take into consideration theadverse observations made by the learned Judge. The Division Benchhas also granted liberty to the petitioners to make an additionalrepresentation to the first respondent. 8. Therefore, the petitioners once again submitted a detailedrepresentation dated 28.6.2004 to the first respondent and it wasonce again rejected on 25.10.2004. The petitioners had invoked thejurisdiction of High Court of Delhi by filing W.P(C)No.4720 of 2006to implement recommendations of the V Central Pay Commission and thesaid writ petition was disposed of as withdrawn on 5.4.2006 bygranting liberty to the writ petitioners to file a fresh writpetition in the Calcutta High Court.9. In the interregnum, the fourth respondent has sent adetailed suggestion dated 15.2.2007 to the Chairman VI Central PayCommission, wherein it was pointed out that the Scale of pay ofTechnical Cadre was not revised even though their educationalqualifications were revised by way of amended Recruitment Rules,1982. It was further recommended by the 4th respondent that thescale of pay of the Coast Guard employees/personnel is to be fixedon par with CPMF/BSF.10. Thereafter, the VI Central Pay Commission was constitutedand aggrieved by the recommendations made by the VI Central PayCommission, the petitioners once again approached the Circuit Benchof Calcutta High Court at Port Blair by filing W.P(AN) No.121 of2008 praying for the issuance of writ of mandamus to fix the scaleof Yantriks at Rs.5,000-8,000 with effect from 01.01.1996 andRs.5,500-9,000 with effect from 10.10.1997 on par with CentralPolice Organisations i.e. CPMF and BSF. By means of an interimorder, the respondents were directed not to give effect to therecommendations made by the VI Central Pay Commission regardingfixation of the scale of pay of Yantriks. However, the said writpetition was dismissed on 24.11.2008 on the ground that the CircuitBench not having territorial jurisdiction to entertain the claim ofthe petitioners, as the petitioners are presently posted at Chennaiand Mumbai. Hence, the petitioners have invoked the jurisdiction ofthis Court and filed this writ petition for redressal of theirgrievance.11. The grievance of the petitioners are that in respect ofsimilarity in educational qualification under Yantriks and Sub-Inspectors/Junior Engineer II in BSF as well as similarity of worksin similar organisations the request made by the petitioners aretreated with arbitrariness and also they are discriminated. Thepetitioners are suffering, as they are stagnating in the same scaleof pay for quite number of years even though persons who are https://hcservices.ecourts.gov.in/hcservices/ similarly placed and employed in CPMF and BSF have been grantedhigher scale of pay in pay Band-2 with grade pay of Rs.4,500/-.12. The petitioners further contended that in spite ofrecommendations made by their employees namely the fourthrespondent/ Coast Guard, the same has not been properly consideredand as a result, they continue to suffer very much. Hence, thepetitioners pray for appropriate relief by filing this writpetition. 13. Respondents 1,2,4 and 5 had filed common counter. In thecounter, it is contended that by granting different pay scales tocivilian employees observing the petitioners, it cannot be said thatthere has been any discrimination or injustice caused to thepetitioners. After the implementation of the VI Central PayCommission Report, the Coast Guard Organisation has once again takenthe issue of pay scales of Yantriks as an anomaly and also sent aletter in AR/242 dated 16.5.2008 and PA/0401/5/VI Pay Cell dated01.10.2008 and the same is still under the consideration of theGovernment of India. The Government of India has also constituted aFast Track Committee vide Office Memo No.1/1/2008-IC(Pt) dated29.9.2008 to look into the issues raised by Coast Guard Organisationregarding pay scales of Yantriks along with Master CraftsmenPharmacists and the recommendation of the said committee whichwould be submitted in a time bound manner, will then be consideredby them. Therefore, according to the respondents 1, 2, 4 and 5, thepresent writ petition is premature as their grievances are underconsideration with the Fast Track Committee constituted by theGovernment of India and their recommendations if any are yet to befinalised, as the employees Coast Guard Organisation taken up thatissue. 14. Heard the submissions of Mr.S.Ramasamy, learned seniorcounsel appearing for the petitioners and Mr.V.Santhakumar, learnedcounsel appearing for the respondents. 15. The learned senior counsel appearing for the petitionershas heavily placed reliance upon the following judgments:-1. 2006(9) SCC 406 – K.T.Veerappa and others -vs- State ofKarnataka and others; 2. 2008(7) SCC 375 – Haryana State Minor Irrigation TubewellsCorpn. and others -vs- G.S.Uppal and others; 3. 2008(1) SCC 586- Union of India -vs- Dineshan K.KIn 2006(9) SCC 406 - K.T.Veerappa and others -vs- State ofKarnataka and others, the issue arose was with regard to the nonimplementation of the pay scales recommended by the Pay Commissionfor the employees of non-teaching staffs of University of Mysore.It has been held as follows:- https://hcservices.ecourts.gov.in/hcservices/ "It is true that fixation of pay and determination ofparity in duties is the function of the executive and thescope of judicial review of administrative decision inthis regard is very limited. However, it is also equallywell settled that the courts should interfere withadministrative decisions pertaining to pay fixation andpay parity when they find such a decision to beunreasonable, unjust and prejudicial to a section ofemployees and taken in ignorance of material and relevantfactors."In the said case, the Government has conceded that the revision ofpay scales extended to the employees of State Government time andagain will also be extended to the University employees. 16. In 2008(7) SCC 375- Haryana State Minor IrrigationTubewells Corpn. and others -vs- G.S.Uppal and others, the questionarose was as to whether a State owned Corporation which is incurringloss has bound to effect revised higher pay scales which is beingpaid to State Government employees. The Hon'ble Supreme Court ofIndia by placing reliance upon the decision cited (supra) has heldthat on an earlier occasion the pay scales of the employees of theCorporation were treated and equated on par with those in Governmentand there is no justification of denying the same by putting forthreason that the Corporation is incurring loss.17. In 2008(1) SCC 586- Union of India -vs- Dineshan K.K., thequestion arose was whether the Radio Mechanics in Assam Rifles wereentitled to parity in pay scale with other Central Para MilitaryForce (CPMF). In the said case, the Central Government filed acounter admitting that there was apparent disparity and anomaly inthe pay scales of Radio Mechanics even though the IV Pay Commissionhas stated that the duties performed by them are identical to thatof other Para Military Force.18. While adjudicating the said issue the Hon'ble Supreme Courtof India has taken into consideration its earlier pronouncements hasheld as follows:- "The doctrine of equal pay for equal work is not anabstract doctrine and is capable of being enforced in acourt of law. Inter alia, observing that equal pay must befor equal work of equal value and that the principle ofequal pay for equal work has no mathematical application inevery case, it has been held that Article 14 permitsreasonable classification based on qualities orcharacteristics of persons recruited and grouped together,as against those who are left out. Of course, thequalities or characteristics must have a reasonablerelation to the object sought to be achieved. Enumerating https://hcservices.ecourts.gov.in/hcservices/ a number of factors which may not warrant application ofthe principle of equal pay for equal work, it has been heldthat since the said principle requires consideration ofvarious dimensions of a given job, normally theapplicability of this principle must be left to beevaluated and determined by an expert body and the courtshould not interfere till it is satisfied that thenecessary material on the basis whereof the claim is madeis available on record with necessary proof and that thereis equal work of equal quality and all other relevantfactors are fulfilled." The Hon'ble Supreme Court of India in the said decision ultimatelyquashed the impugned decision of the Government and decided thematter in favour of the Radio Mechanics in Assam Rifles and grantedthem pay parity. 19. The learned senior counsel appearing for the petitionerssubmitted that the ratio laid down in those decisions are squarelyapplicable to the facts of this case as the employer of thepetitioners namely Coast Guard has repeatedly pointed out the abovesaid anomaly and even prior to the finalisation of report by the VICentral Pay Commission, it has forwarded the final memorandum dated15.2.2007 specifically pointing out among other things that payscales of technical cadre enrolled personnel like the petitionerswere not revised when the educational qualification was upgraded andrevised in the year 1992 and it was promised that the grievance willbe taken up with the VI Central Pay Commission Report. The fourthrespondent Coast Guard made fervent appeal for revision of pay scaleto personnel attached to technical branch of Coast Guard on par withany Diploma entry candidate of the Government of India or the CPMF.However, the said issue was once again not considered by the VICentral Pay Commission recommendations and consequently thepetitioners are continue to suffer the same fate. 20. The learned senior counsel appearing for the petitionerswould further contend since the reasons adduced earlier by the firstrespondent are irrational and arbitrary, positive directions is tobe issued to the respondents 1 and 2 to effect pay parity to thepost of Yantriks with that of similarly placed personnel in theservice CPMF/BSF. 21. Per contra, Mr.Santhakumar, learned counsel appearing forthe respondents would submit that granting of different pay scalesto civilian employees and vis-a-vis technical personnel cannot beattacked as there was no discrimination. The anomalies pointed outby the Coast Guard after implementation of VI Central Pay Commissionis under the active consideration of the Central Government andimplementation Cell was also constituted by the Ministry of Finance https://hcservices.ecourts.gov.in/hcservices/ with effect from 1.4.2008 to specifically look into the case ofanomalies. A Fast Track Committee was also constituted on 29.9.2008to look into the issues raised by the Coast Guard Organisation inrespect of the post of Yantriks along with Master Craftsmen andPharmacists and the recommendation of the said committee is awaited.Therefore, the learned counsel appearing for the respondents wouldsubmit that this writ petition is premature. 22. This Court has carefully considered the submissions made bythe learned senior counsel appearing for the petitioners and thelearned counsel appearing for the respondents and also consideredthe materials available on record including the typed set ofdocuments. A careful analysis of the ratio laid down by the Hon'bleSupreme Court of India in the above said decision would reveal thatequal pay for equal work is a doctrine well established as servicejurisprudence and the equal pay would depend upon not only on thenature or volume of work but also quality of work as regardsreliability and responsibility as well and different pay scales maybe prescribed on the basis of such reliability and responsibility.It is also the settled position of law, power of judicial reviewwith regard to the parity in employment and matters of fixation ofpay and the scope of judicial review is limited and the Courts wouldinterfere if pay fixation is unreasonable, unjust and prejudicial toa section of employees and taken in ignorance of material andrelevant factors. 23. In Secretary Finance Department vs. West Bengal RegistrationService Association reported in 1993 Supp(1) SCC 153 = 1993 SCC(Labour and Service) 157, the Hon'ble Supreme Court of India held asfollows: "We do not consider it necessary to traverse the case lawon which reliance has been placed by counsel for theappellants as it is well settled that equation of postsand determination of pay scales is the primary function ofthe executive and not the judiciary and, therefore,ordinarily courts will not enter upon the task of jobevaluation which is generally left to expert bodies likethe Pay Commission, etc. But that is not to say that thecourt has no jurisdiction and the aggrieved employees haveno remedy if they are unjustly treated by arbitrary Stateaction or inaction. Courts must, however, realise thatjob evaluation is both a difficult and time-consuming taskwhich even expert bodies having the assistance of staffwith requisite expertise have found difficult to undertakesometimes on account of want of relevant data and scalesfor evaluating performances of different groups ofemployees. This would call for a constant study of theexternal comparisons and internal relativities on account https://hcservices.ecourts.gov.in/hcservices/ of the changing nature of job requirements. The factorswhich may have to be kept in view for job evaluation mayinclude (i) the work programme of his department (ii) thenature of contribution expected of him (iii) the extent ofhis responsibility and accountability in the discharge ofhis diverse duties and functions (iv) the extent andnature of freedoms/limitations available or imposed on himin the discharge of his duties (v) the extent of powersvested in him (vi) the extent of his dependence onsuperiors for the exercise of his powers (vii) the need toco-ordinate with other departments, etc. We have alsoreferred to the history of the service and the effort ofvarious bodies to reduce the total number of pay scales toa reasonable number. Such reduction in the number of payscales has to be achieved by resorting to broad banding ofposts by placing different posts having comparable jobcharts in a common scale. Substantial reduction in thenumber of pay scales must inevitably lead to clubbing ofposts and grades which were earlier different and unequal.While doing so care must be taken to ensure that suchrationalisation of the pay structure does not throw upanomalies. Ordinarily a pay structure is evolved keepingin mind several factors e.g. (i) method of recruitment,(ii) level at which recruitment is made, (iii) thehierarchy of service in a given cadre, (iv) minimumeducational/technical qualifications required, (v) avenuesof promotion, (vi) the nature of duties andresponsibilities, (vii) the horizontal and verticalrelativities with similar jobs, (viii) public dealings,(ix) satisfaction level, (x) employer's capacity to pay,etc. We have referred to these matters in some detailonly to emphasise that several factors have to be kept inview while evolving a pay structure and the horizontal andvertical relativities have to be carefully balancedkeeping in mind the hierarchical arrangements, avenues forpromotion, etc. Such a carefully evolved pay structureought not to be ordinarily disturbed as it may upset thebalance and cause avoidable ripples in other cadres aswell. It is presumably for this reason that the JudicialSecretary who had strongly recommended a substantial hikein the salary of the Sub-Registrars to the Second (State)Pay Commission found it difficult to concede the demandmade by the Registration Service before him in hiscapacity as the Chairman of the Third (State) PayCommission. There can, therefore, be no doubt thatequation of posts and equation of salaries is a complexmatter which is best left to an expert body unless thereis cogent material on record to come to a firm conclusionthat a grave error had crept in while fixing the pay scale https://hcservices.ecourts.gov.in/hcservices/ for a given post and court's interference is absolutelynecessary to undo the injustice."24. The Circuit Bench of Calcutta High Court on more than oneoccasion found that when the qualification for selection to the postof Yantriks was revised there was no improvement in the pay scalepayable to them and Pradhan Navic and Uttam Navic (GD) can becomeYantriks provided he successfully completes the mechanical courseconducted by the Coast Guard itself. Therefore, it directed thefirst respondent to take into consideration the said vital aspectand the said issue accordingly. The first respondent onconsideration of the same, has rejected the requests primarily onthe ground that any further changes in the pay scales would haveripple effect on promotional categories of Uttam Yantrik andPradhan Yantrik , Sahayak Engineer, Uttam Sahayak Engineer and aswell as in the pay scale structures of comparable categories in theIndian Navy and their grievances will be taken up by the nextCentral Pay Commission. Unfortunately, according to thepetitioners, the VI Central Pay Commission has also not taken intoconsideration the strong recommendations made by the Coast Guard foreffecting revisional scales of pay as that of the persons who aresimilarly placed in the organisations like CPMF/BSF. Therefore, theCoast Guard once again submitted a detailed representation regardingthe pay anomaly in respect of the post of Yantriks and as per theaverments made in the counter affidavit, the said request is underthe active consideration of Fast Track Committee constituted by theGovernment of India vide O.M.1/1/2008-IC(Pt) dated 29.9.2008. 25. The grievance expressed by the petitioners prima facieappears to be genuine and not properly taken into consideration.However, the said issue involves complex questions and therefore,this Court is not in a position to adjudicate the same in exerciseof its jurisdiction under Article 226 of the Constitution of India.Therefore, this Court is of the opinion that the grievance expressedby the petitioners which find support in terms of the anomaliespointed out by their employee namely the fourth respondent, can beset right. Therefore, this Court would request the respondents 1 to3 to expedite the said process and communicate the result asexpeditiously as possible. 26. In the result, the writ petition is disposed ofaccordingly. But in the circumstances, there will be no order as tocosts. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ gr. To1.The Secretary, Government of India, Ministry of Defence,Room No.101, South Block, New Delhi – 110 001.2.The Secretary, Government of India, Ministry of Finance,Room No.134, North Block, New Delhi -110 001. 3.The Chairman for VI Central Pay Commission,Implementation Cell, Ministry of Finance, North Block, New Delhi-110 001.4.The Director General Coast Guard, Coast Guard Headquarters,National Stadium Complex, New Delhi-110 001.5. The Commandar, Coast Guard Region (East), Fort St.George, Chennai-600 009.+1cc to Mr.B.Shanthakumar,Advocate Sr 19590+1cc to M/s.Anitha More,Advocate Sr 19319PA(CO)km/4.6.W.P.NO.29965 of 2008