Union of India v. Indian Navy Civilian Design Officers Association and Anr.

BELA M. TRIVEDI, J. 1. By way of present appeal, the appellant-Union of India haschallenged the judgment and order dated 02.08.2010 passed by the High Court of Delhi, in WP(C)No. 1006 of 2008, whereby the High Court had dismissed the Writ Petition filed by the appellant and confirmed the judgment and order dated 08.06.2007 passed by t he Central Administrative Tribunal (hereinafter referred to as the ‘Tribunal’) in O.A. No. 2228 of 2006. 2. The respondent-Indian Navy Civilian Design Offic ers Association had by way of filing the O.A. No.2223/2006 befor e the 533 Tribunal, challenged the decision of the appellant rejecting their representation for the grant of pay scale of Rs.7500-12000 to the Junior Design Officers as allowed to the Civilian Technical Officers (Design), consequent to the implementation of the Fifth Central Pay Commission. As per the case of the respondent-association, the ca dre of Design officers in the Indian Navy was created in the year 1965 in order to meet with the functional requirements of Navy regarding specific assignments to the Naval dockyards, Training, Establishments, Directorate of Naval Design and other Technical Directorates of Naval Headquarters. The drawing staff in the Navy belonged to diverse disciplines such as Construction, Electrical, Engineering and Armament. So far as the disciplines of Construction, Electrical and Engineering were concerned, the Group ‘B’ gazetted posts were designated as Junior Design Officers (JDOs), and for Armament disciplines, the Group ‘B’ gazette d posts were designated as Civilian Technical Officers (CTOs) (Design). The Recruitment Rules governing the JDOs notified by SRO 367 date d 08.12.1996, were amended by SRO 246 dated 21.11.200 2. The Recruitment Rules for the post of CTOs (Design) were notified by SRO 132 dated 12.05.1982. 3. As per the further case of the respondent-Association, up to the Fifth Central Pay Commission, all the pay scales of all the disciplines and all grades were the same, however, after the recommendat ions of the Fifth Pay Commission, the pay scale of Rs.7500-12000 was f ixed for the CTOs, whereas the pay scale of Rs.7450-11500 was fixed for the JDOs. Since the pay scales of the feeder cadre had r emained the same in all the disciplines, the respondent-Associa tion had made representation to the appellant for the grant of revised pay scale of Rs. 7500-12000 to the JDOs as allowed to the CTOs (Design) consequent upon the implementation of the Fifth Central Pay Commissi on. The Ministry of Finance having rejected the respondent’s pr oposal for upgradation of the pay scale, the respondent-Association had filed the O.A. No. 1730 of 2003 before the Tribunal. The Tribunal vide the order dated 01.11.2004 disposed of the said O.A. with direction to the appellant to consider the parity of pay scale of JDOs along with CTOs by evaluating their duties and responsibilities and to pass a detailed speaking order. 4. The Ministry of Finance reconsidered the said representation of the respondent-Association, however, again rejected the sam e by a speaking order on 07.04.2006. Being aggrieved by the said order, the UNION OF INDIA v. INDIAN NAVY CIVILIAN DESIGN OFFICERS ASSOCIATION [BELA M. TRIVEDI, J.] respondent-Association had preferred the O.A. No. 2228 of 2006 before the Tribunal, which came to be allowed vide the order dated 08.06.2007. The Tribunal set aside the order dated 07.04.2006 passed by the appellant- UOI and directed the appellant to grant to the JDOs, the p ay scale of Rs. 7500-12000 at par with Group ‘B’ gazetted posts of CTOs (Design) from the same date as it was given to the Group ‘B’ gazetted posts with all consequential benefits. The appellant being aggrieved by the said order passed by the Tribunal had filed W.P(C) No. 1006 of 2008, which came to be dismissed by the High Court vide the impugned order. 5. The main question that falls for consideration before this Court is whether the Tribunal and the High Court were justified in equating the posts of JDOs with CTOs, and in fixing the pay scales of JDOs equivalent to that of CTOs, in utter disregard of the legal position se ttled by this Court in catena of decisions to the effect that the Courts should not interfere with the complex issues of evaluating the nature of duties and responsibilities of posts, and of fixing the pay scales, which task otherwise is best done by the expert bodies like the Pay Commission. 6. The learned Senior Advocate Mr. R. Bala Subraman yam appearing for the appellant placing heavy reliance upon the decision of the Ministry of Finance dated 07.04.2006 submitted as under: (i) The posts of JDOs and CTOs are governed by two different sets of Rules. Accordingly, the qualifications for recruitment/ promotion in the case of CTOs are higher than that of the JDOs; (ii) The probation period in case of CTOs is longer than that of JDOs; (iii) The duties and responsibilities attached to the posts of CTOs are more onerous, varied and challenging as compared to that of JDOs; (iv) The post of CTOs also exists in other streams like R&D in the revised pay scale of Rs. 7500-12000. These posts could not be given the lower pay scale of Rs. 7450-11500, as the feeder post of foreman exists in the said pay scale. (v) As the post of CTOs in different streams within the Naval Armament Inspection Organizations were already in the higher pay scale of Rs. 7500-12000, the same pay scale 535 had to be extended to the CTOs (Design) as well, whereas no such exigency existed in case of the post of JDOs. (vi) The pay scales for the posts of the JDOs and CTOs w ere fixed on the basis of the specific recommendations of the Fifth Central Pay Commission, and therefore the Tribunal as well as the High Court had committed gross error in interfering with the same and in upgrading the pay scale of JDOs to put them at par with CTOs (Design). 7. Mr. R. Bala Subramanyam has also placed on record the chart showing the promotional hierarchy of CTOs and JDOs in different CPCs:- Promotional hierarchy of CTO and JDO in different CPCs *New grade of PTO(D) created in the cadre restructuring on 29 Oct. 2020. #The posts of D’Man in NAI cadre has been abolished in the cadre restricting on 29 Oct. 2020. - Grade/Posts doesn’t exists in cadre. UNION OF INDIA v. INDIAN NAVY CIVILIAN DESIGN OFFICERS ASSOCIATION [BELA M. TRIVEDI, J.] 8. Per contra, learned senior advocate Mr. Salman Khu rshid appearing for the respondent-Association made the f ollowing submissions- (i) The Fifth Pay Commission had ignored the fact that from the very beginning, the posts of JDOs and CTOs (Design) carried the same pay scales, as they were having the same duties and responsibilities. (ii) The post of Senior Foreman was granted the pay scale of Rs. 7450-11500, which was the pay scale granted to the JDOs, though the JDOs in the course of their duties had to supervise the work of Chief Draughtsman and Senior Foreman. (iii) The department itself had strongly supported the case of JDOs by putting a note dated 16.02.2005 recorded by the Joint Director who had recommended upgradation of the pay scale of JDOs and for putting them at par with CTOs (Design). (iv) Up to the Fourth Pay Commission, both the posts were carrying the same pay scale. (v) There would not have been any cascading effect if the pay scale of JDOs was upgraded, as the post of JDOs did not exist in the other organizations like EME, MES, and Air Force etc. and the financial implications were also not very big. (vi) The essential qualifications in the Recruitment Rules for CTO (Design) and in the Recruitment Rules for JDO were also more or less same and the promotional avenues in both the cadres were also similar. 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 pos ts and equation of salaries is a complex matter which is best left to an expert body unless there is cogent material on record to c ome to a firm conclusion that a grave error had crept in while fixing the pay scale for 537 a given post and the interference of the Court was absolutely necessary to undo the injustice. 10. In State of U.P. and Others Vs. J.P. Chaurasia and Others1, while answering the questions as to whether the Bench Sec retaries 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 “equa l 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 o thers, evaluation of duties and responsibilities of the respective pos ts. 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 be st 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 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 and Others Vs. Makhan Chandra Roy 2. Again, in Secretary, Finance Department and Others Vs. West Bengal Regis tration Service Association and Others3, 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 gazett ed status, was examined by this Court. It was elaborately observed in para 12 as under:- 1 1989(1) SCC 121 2 1997 (11) SCC 182 3 1993 Suppl. (1) SCC 153 UNION OF INDIA v. INDIAN NAVY CIVILIAN DESIGN OFFICERS ASSOCIATION [BELA M. TRIVEDI, J.] “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 t he 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 inact ion. 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 gro ups of employees. This would call for a constant study of the exte rnal comparisons and internal relativities on account of the changing nature of job requirements. The factors which may have to b e 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 tha t 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) 539 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 hierarchica l 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) P ay Commission. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is bes t 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 interfer ence is absolutely necessary to undo the injustice.” 12. In State of Haryana and Others Vs.Charanjit Singh and Others4, 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 o f 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 per mits reasonable classification based on qualities or characteristic s of persons recruited and grouped together, as against those who were 4 2006 (9) SCC 321 UNION OF INDIA v. INDIAN NAVY CIVILIAN DESIGN OFFICERS ASSOCIATION [BELA M. TRIVEDI, J.] 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 efficie ncy 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 pe rson 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. Eve n 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 compete nt 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 re gular 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 applicati on 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 respons ibility. 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 o f material placed before it, convinced that there was equal work of equal quality and all other relevant factors are fulfilled it may 541 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 and Anr. V s. 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 servic e.” 14. In view of the afore-stated legal position, it clearl y emerges that though the doctrine “equal pay for equal work” is not an abs tract 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 p osts 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 particu lar post, the promotional avenues, the Statutory rules governing the condition s of service, the horizontal and vertical relativities with simi lar 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 effic iency 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 classif ication 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 5 (2015) 3 SCC 653 UNION OF INDIA v. INDIAN NAVY CIVILIAN DESIGN OFFICERS ASSOCIATION [BELA M. TRIVEDI, J.] over the wisdom of the Executive in prescribing certain pay structure and grade in a particular service. 15. So far as the facts of the present case are concerned, it is not disputed that the Recruitment Rules governing the JDOs are as per the SRO 367 dated 08.12.1996, as amended by SRO 246 dated 21.11.2002, whereas the Recruitment Rules governing the CTOs (Desig n) are as per the SRO 132 dated 12.05.1982. The probation period in case of CTOs is longer than that of JDOs. The duties and responsibi lities of both the posts are different and the promotional avenue s also have different duration and different criteria. There was not a si ngle error, much less grave error pointed out by learned Senior Advoc ate. Mr. Khurshid, in the fixation of the pay scales for the JDOs and CTOs, which would have justified the interference of the Tribunal. 16. Much emphasis was placed by the learned senior advocate Mr. Khurshid on the noting made by the Officer of the Naval Department in the file recommending pay scale of JDOs equivalent to that of CTOs, however, it may be noted that a noting recorded in the file is merely an expression of opinion by a particular officer, and by no-stretch of imagination such noting could be treated as a decision of the Government6. 17. The powers of judicial review in the matters involving financial implications are also very limited. The wisdom and advisability of the Courts in the matters concerning the finance, are ordinarily not amenable to judicial review unless a gross case of arbitrarin ess or unfairness is established by the aggrieved party. 18. In that view of the matter, we are of the opinion that the Tribunal and the High Court had committed gross error in int erfering with the pay scales recommended by the Fifth Central Pay Commission and accepted by the appellant for the posts of JDOs and CTOs, and in upgrading the pay scale of JDOs making it equivalent to the pay scale of CTOs. 19. Consequently, the impugned orders passed by the High Court and the Tribunal are quashed and set aside. The appeal stands allowed accordingly. Nidhi Jain Appeal allowed. (Assisted by : Bhavyata Kapoor and Shashwat Jain, L CRAs) 6 (2009) 15 SCC 705