STATE OF WEST BENGAL AND ORS. versus HARI NARAYAN BHOWAL AND ORS.

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STATE OF WEST BENGAL AND ORS. v. HARi NARAYAN BHOWAL AND ORS.

MARCH 16, 1994

[P.H. SAWANT AND N.P. SINGH, JJ.]

Constitution of India, 1950: Articles 14, 16(1), 39(d)-Equal pay for equal work-Agragamies recntited under the West Bengal National Volunteer Force Act claiming parity of pay scales with police constables-Held, they C form two different classes in public service-Fixing different scales of pay not violative of Article 14-Claimants should satisfy the Court not only that nature of work is identical but they belong to the same c/as;-Till claimants satisfy that they have not been treated as equals within parameters of Article 14, Courts should be reluctant to issue any writ to treat them equal.

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Service Law-Whether two posts should carry equal pay, does not depend just upon either the nature or volume of work done; requires evalua tion of duties and responsibilities of the respective posts.

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77te West Bengal National Volunteer Force Act, 1949---Concept of National Volunteer Force-Held, is different from that of a police force; it is a standby force, not only for law and order but for different emergencies to aid and help regular police force.

The Respondents were 'Agragamies' employed under the provisions F of the West Bengal National Volunteer Force Act, 1949. Claiming to perform the duties of constables apart from other duties they demanded the same scale of pay and other benefits payable to police constables. The Pay Commission recommended different scales of pay for them.

A single judge of the High Court, on the principle of equal pay G for equal work, allowed the Respondents, Writ Petition and directed the State Government to consider their case. A Division Bench affirmed the order.

Before this Court the appellant State of West Bengal contended that H while Agragamies were recruited from amongst trained members of the

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National Volunteer Force, constables were directly recruited by selection. A The qualfication for Agragamies was Class VI passed whereas for con stables it was Class VIII passed. There was difference in the minimum physical standard required for the two as well as in their duties.

Allowing the appeal, the Court

HELD : 1. To treat the Res1rnndents and the constables of the West Bengal Police Force separately in matters of fixation of scale of pay, is not violative of Article 14 of the Constitution. They form two different classes in public service. (32-D]

State of West Bengal v. Madan Mohan Sen, (1993] Supp. 3 SCC 243,

relied on.

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2. Whether two posts are equal or should carry the equal pay, depends on several factors. It does not depend just upon either the nature D of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. The quan- tity of work may be the same but the quality may be different. That cannot be determined by relying upon avern1ents in affidavits of interested parties but by expert bodies like Pay Commission. [31-A-R]

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Delhi Vete1ina1y Association v. Union of India, AIR (1984) SC 1221

and State of U.P. v. J.P. Chaurasia, AIR (1989) SC 19, relied on.

State of M.P. v. Pramod Bhartiya, (1993] l SCC 539 and Shyam Babu

Vemza v. Union of India, JT (1994) I SC 574, referred to.

3. The whole concept of the National Volunteer force, is different from that of the police force. In respect of the volUnteers, it can be said that it is a stanhy force, not only for hnv and order, but for different emergencies, to aid and help the regular police force or members of other services. (29-G]

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4.1. The principlt: of 'equal pay for equal work' can be enforced, only after the persons clain1ing, satisfy the Court that not only the nature of \\'ork is identical but in all other respects they belong to the same class and there is no apparent reason to treat equals as unequals. (31-E]

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4.2. Unless a very clear case is made out and the Court is satisfied that the scale provided to a group of persons on the basis of material produced before it amounts to discrimination without there being any justification, the Court should not take upon itself the responsibility of fixation of scales of pay. (31-F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1741 of

1994.

From the Judgement of Order dated 27.8.92 of the Calcutta High Court in Original Order No. 468 of 1992 (F.M.A. No. 468/92) arising out of C.R. No. 1102(N) of 82.

Dilip Sinha and J.R. Das for the Appellants.

N.B. Shetty & G.S. Chatterjee for the Rrespondents.

The Judgment of the Court was delivered by

N.P. SINGH, J. Leave granted.

This appeal has been filed on behalf of the State of West Bengal, against an order passed by the High Court, directing the State Govermnent, to give the same pay scale and other benefits, which are payable to the Constables of the West Bengal Police Force, to the writ petitioners-respon dents (hereinafter referred to as the 'respondents'), who are the members of the West Bengal National Volunteer Force.

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The respondents were employed as 'Agragamies' otherwise called Volunteers attached to Biswakarma Battalion. According to respondents, as they have been appointed in accordance with the provisions of the West Bengal National Volunteer Force Act, 1949 (hereinafter referred to as the 'Act') and as they have been performing the duties of the Constables while maintaining law and order, they should be treated at par with the police G Constables of the West Bengal; they are entitled to the same scale of pay and other benefits which are payable to such Constables. It was pointed out on their behalf, that the revised scale of pay introduced by the Govern ment, for the National Volunteers, were highly discriminatory in nature and different from the members of the West Bengal Police Force although the respondents not only perform the duties of the Constables while maintain-

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STATEOFW.BENGAL v. BHOWAL[N.P.SlNGH.J.[

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ing la\V and ,1rder, but perform even the duties of brick laying, carpentry, A painting, plastering, flooring, pun1ping and electrical \viring. They have to construct roads and highways as well, apart from guarding the vital instal lations.

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A learned Judge on the principle of 'equal pay for equal work', directed the State Government to consider the case of the respondents, in the light of the judgment of the same court in the case of Madan Mohan Sen and Ors. v. The State of West Bengal and Ors., in which the High Court had directed to pay the Agragamies, who were the members of the West Bengal Civil Emergency Force, the scale of pay and benefits, which were payable to the firemen in the West Bengal Fire Service. The Division Bench, affirmed the direction given by the single Judge, saying that as the Agragamies have been performing and discharging the duties of th.e Con stables, they were entitled to the same scale of pay and other allowances, which are payable to the Constables of the West Bengal Police Force; the denial of said scale and benefits amounted to discrimination within the D meaning of Article 14 of the Constitution.

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On behalf of the appellant-State, it was pointed out by a reference, to the comparative data which had been filed before the High Court regarding the Agragamies in the West Bengal National Volunteer Foree and the Constables in the West Bengal Police Force, that Agragamies are recruited from amongst the trained members of the National Volunteer Force, or from amongst the ex-servicemen, whereas the Constables in Police Force are recruited on selection, by process of direct recruitment. The qualification prescribed for Agragamies is Class VI passed, whereas for Constables the qualification is Class VIII passed. There is also dif ference in the minimum physical standard required for the two. The duty to be performed by the Agragamies are (1) to aid the police force to meet law and order situation, (2) to attend emergencies on call, in times of Dock Strike, Corporation Strike and similar other situation of unrest (3) to attend emergency duties at times of natural calamities e.g. flood, storms, G earthquake etc. ( 4) to guard vital installations in Union/State undertakings, e.g. D.P.L., D.C.L., R.C.F.A., WBSEB and Water Treatment Plants, etc. whereas the duties of the police Constables, are maintenance of law and order and prevention of crime. It further appears that Agragamies are class IV employees in the State Government Service, while Constables are Class H

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III employees.

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In the Act "Force" has been defined to mean West Bengal National Volunteer Force. "Volunteer" has been defined under Section 2(g) to mean a person enrolled as a member of the West Bengal National Volunteer Force or any unit or corps of the Force established, constituted or formed, as the case may be under the proviso to Section 3 or Section 7. Section 3 says that the State Governn1ent may raise and maintain na volllnteer force to be called the West Bengal National Volunteer Force" and for that purpose enrol persons as volunteers from the Calcutta and elsewhere in West Bengal. The functions of a volunteer has been prescribed in Section C 4, saying that when called upon, he shall discharge such functions in relation to the protection of persons, the security of property and preser vation of the public peace in any area within the West Bengal and such other functions as may be assigned to him by or under the said Act. Section 7 vests power in the State Government to direct that one or more corps or D units of the force be constituted or formed for any particular region within

the West Bengal or for any specified purpose. Section 8 says :-

"8. (1) Any Citizen of India or any person having a permanent domicile in West Bengal who may offer himself for enrolment in the Force and who satisfies the prescribed conditions may be eligible for enrolment therein by such authority, in such manner and for such period not exceeding five years as may be prescribed.

(2) Every volunteer shall receive a certificate of appointment in the prescribed form and such certificate shall be issued by such authority as may be prescribed and thereupon he shall have the powers, privileges and protection conferred, and shall discharge the duties imposed, on a volunteer by or under this Act.

(3) Every volunteer enrolled under this Act shall undergo such

preliminary and periodical training as may be prescribed.

( 4) Every person enrolled as a volunteer under this Act shall be entitled to receive a certificate of discharge in the prescribed form on the expiration of the period for which he was enrolled and any such person may, prior to the expiration of that period, be discharged by such authority subject to such conditions as may

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STATEOFW. BENGAL v. BHOWAL[N.P.SINGH,J.]

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be prescribed, and shall be so discharged on the recommendation A of the Advisory Commitee in this behalf.

(5) The prescribed authority may, subject to such conditions as

may be prescribed -

(a) suspend, discharge, dismiss or remove any volunteer from B his office and thereupon the certificate referred to in sub-sec- tion (2) shall cease to have effect, or

(b) disband any unit constituted under this Act and thereupon every volunteer of such unit shall vacate office."

Section 12 provides that a volunteer, when called upon for duty under sub-section (al) or sub-section (1) of Section 10 to aid the police force, such volunteer shall work under the orders of or be under the control of such officers of the police force as may be prescribed.

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On plain reading of the different provisions referred to above, it appears that West Bengal National Volunteer Force is a force of volun- teers. When called upon for duty, the volunteer has to discharge such functions in relation to protection of persons, the security of property and preservation of the public peace in any area within the Wesl Bengal and such other functions as may be assigned to him. Any citizen of India or any person having a permanent domicile in West Bengal may offer himself for enrolment in the force and if he satisfies the prescribed conditions, he may be enrolled by the prescribed authority for such period not exceeding five years. Every person enrolled as volunteer under the said Act, on expiration of the period for which he had been enrolled or even prior to the expiration F of the said period be discharged in accordance with the procedure prescribed under sub- section ( 4) of Section 8. It is true that such volunteer force has to perform when called upon, the duties of the police force while maintaining law and order. But according to us, the whole concept of the National Volunteer Force, is different from that of the police force. In respect of the volunteers, it can be said that it is a standby force, not only for law and order, but for different emergencies, to aid and help the regular police force or members of the other services.

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It appears, the Pay Commission examined the scales of pay of the volunteers of National Volunteer Force and the Constables of the West H

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Bengal Police Force. On the basis of the relevant mate.,ial different scales of pay for them was recommended. The High Court having found that the nature of work of the respondents was more or less that of the constables of the. police force, especially, when they are called upon to maintain law and order, held that there was no justification to deny the same scale of pay, to the respondents on the principle of 'equal pay for equal work'.

In public services, nature of work in two services or in the same service, the nature of the work of the two groups may be more or less same. But merely on that ground they are not entitled to the same scale of pay. It is well known that scales of pay are fixed by expert bodies like the Pay Commissions, which consists of persons having specialized knowledge of the subject. Such Commissions while fixing the scales of pay or revising the same, have to go in depth, not only into the nature of work by members of ·the same service and members of different services but also various other factors before the scales of pay are fixed. One of the primary concerns of su_ch Pay Commissions is to remove any anomaly and to see that members of different services get scales of pay and other emoluments not only according to the nature of work but also according to educational qualifica tions, responsibilities of the posts and e>.lJerience etc. As such, before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of

E wages or salary.

This Court in the case of Delhi Veterinary association v. Union of India, AIR (1984) SC 1221, said that in addition to the principle of 'equal pay for equal work', the pay structure of the employees of the Government should reflect many other social values. It was said :-

"The degree of skill, strain of work, experience involved, training required, responsibility undertaken, mental and physical require ments, disagreeableness of ihe task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promo tion available and horizontal and vertical relativity with other jobs

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in the same service or outside are also relevant factors. 11

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In the case of State of U.P. v. J.P. Chaurasia, AIR (1989) SC 19=[1989] 1 sec 121, it was pointed out that whether two posts are equal or should carry the equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments ii) affidavits of interested parties. It must be determined by expert bodies like Pay Commission, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. v. Pramod Bharliya, (1993] 1 SCC 539, by a three Judges Bench of this Court. Recently, in the case of Shyam Babu Venna v. Union of lndia, JT (1994) 1 SC 574, a claim for equal pay by a group of Pharmacists was rejected saying that the classification made by a body of experts after full study and analysis of the work, should not be D disturbed except for strong reasons which indicate the classification made was unreasonable.

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It need not be impressed that the principle of 'equal pay for equal work' can be enforced, only after the persons claiming, satisfy the Court that not only the nature of work is identical but in all other respects they belong to the same class and there is no apparent reasori to treat equals as unequals. Unless a ve-:y clear case is made out and the Court is satisfied that the scale provided to a group of persons on the basis of the material produced before it amounts to discrimination without there being any justification, the Court should not take upon itself the responsibility of fixation of scales of pay, especially when the different scales of pay have been fixed by Pay Commission or Pay Revision Committees, having persons as members who can be held to be experts in the field and after examining all the relevant material. It need not be emphasised that ln the process undertaken by the Court, an anomaly in different services may be intro duced, of which the Court may not be conscious, in the absence of all the G relevant materials being before it. Till the claimants satisfy on material produced, that they have not been treated as equals within the parameters of Article 14, Court should be reluctant to issue any writ or direction.to treat them equal, particularly when a body of experts has found them not lo be equal.

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So far as the present case is concc.rned, as already mentioned abo\'e~ the High Court placed reliance on an earlier judgn1cnt of the :>an1c Court directing that Agragamies of West Bengal Ci\'il En1crgcncy Force he paid the same scale of pay, \vhich \vas payable to the Fircn1en of the Fire Service Department. That earlier judg1ncnt of the High Court has been reversed by this Court State of West Bengal v. Madan Mohan Sen, IJ9931 Supp. 3 SCC 243. This Court while dismissing the writ application of Agragamies of West Bengal Civil Emergency Force has pointed out that merely because the academic qualifications and physical requirements of both are similar or that the Agragamics are also given certain fire-fighting training along \vith other training, it cannot be said that they perform similar duties, functions and responsibilities as the Firemen.

The same is the position here. On the material on record, it is difficult to hold that the respondents who had been enrolled as volunteers under the West Bengal National Volunteer Force .A.ct, belong to the class of Constables, under the West Bengal Police Force and to treat them ·.separately in matters of fixation of scale of pay, amounts to violating Article 14 of the Constitution. According to us, they form two different classes in public service. In this background, the High Court was in error in treating them at par with the Constables of the West Bengal State Police Force.

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In the result, the appeal is allowed and the .iudgments of the Single Judge and the Division Bench are set aside. In the facts and circumstances of the case, there will be no order as to costs.

S.M.

Appeal allowed.

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