ORDER
Subject: Implementation of Court order dated 16.2.99 in the SWP No. 518/97 filed by Shri D.S. Ahluwalia,
Law Officer Grade-I, Frontier Head Quarters, Jammu.
1. Shri D.S. Ahluwalia, Law Officer, Grade-I, Ftr HQ Jammu filed a SWP No. 518/97 in the High Court of Jammu to bring the cadre of petitioner at par with the their counterparts in the Coast Guard and NSG retrospectively i,e from the date of implementation of the report of the 4th Pay Commission and grant of BSF Chief Law Officer and Law Officer Grade-I, similar pay scales and rank on the principle of equal pay for equal work and to place the case of BSF Law Officers before the Empowered Committee with a further direction to the Empowered Committee to consider and decide the case of BSF Law Officer for removal of disparity/anomaly in their pay scales and to bring them at par with their counter part Law Officers in the Coast Guard and NSG.
2. The case came up for hearing on 2.4.97 and the Hon'ble court passed interim order on 2.4.97 to place the representation of the petitioner and his colleagues before the Empowered committee. The Empowered Committee of Ministry of Finance examined the issue on 8.5.97 and held that since the matter involves increase of pay scales and up gradation such proposals should be moved separately by the concerned department, since the Empowered committee is only a screening Committee for the Vth Pay Commission recommendations, it cannot go into the merits of the demand of BSF Law Officers; which amounts to a complaint on grounds that the Pay Commission did not increase their pay scales and is not based on any adverse impact arising out of the 5th Pay Commission's recommendation.
3. The petitioner subsequently filed an application for interim relief on the SWP NO. 518/97 seeking speaking orders on the representation, by the Secretary, Ministry of Finance and Secretary, Department of Expenditure, Ministry of Finance (Respondents 2&3).
4. The High Court of Jammu issued an interim order dated 22.8.97 in modification of the order dated 2.4.97 directing the respondent to consider the representation of the petitioner and other Law Officers in accordance with the orders passed by the Court on 2.4.97. Subsequently, the High Court at Jammu vide its order dated 16.3.98 directed:-
'The respondent 1 to 3 (MHA, MOF and Secretary Department of Expenditure, MOF) will consider the case of the petitioner by putting a comprehensive proposal for up gradation of the post to bring Law Officers at par with the Law Officers of Coast Guard and NSG. The proposal to be put up before the Cabinet and the matter be processed by all concerned..' 5. In compliance to the Court order, MHAS with the approval of Cabinet issued orders vide No. 16/6/88Pers/BSF/PF-II/391 dated 24.8.98 upgrading the post of Law Officers of BSF to bring them at par with the post of Law Officers in the Coast Guards. The Recruitment Rules of BSF Law Officers have also been framed and Gazette Notification issued vide GSR-260(E) dated 13.4.99.
6. The petitioner filed an objection petition No. 516/97 in the High Court of Jammu praying direction of the Hon'ble court to upgrade pay scales as contained in the impugned order dated 24.8.98 w.e.f 1.1.96 if not earlier, in the case of BSF Law Officers, like their counterparts in the Coast Guard and NSG.
7. The matter came up for hearing on 16.2.99 and the High Court of Jammu issued ex parte orders on 16.2.99 directing as follows:-
'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 the Union of India would give full respect to the observations made by the Supreme Court in the Writ petition referred to above (Writ petition No. 1193/87 In the case of Shri G.S. Ratheesh Kumar and Ors. v. Union of India and Ors. decided on 14.12.87 by the Supreme Court of India)'. 8. The matter for grant of upgraded pay scales to Shri D.S. Ahluwalia LO Gde-I and other Law Officers of BSF with retrospective effect from 1.1.96 has been considered by the Ministry of Home Affairs in consultation with the Ministry of Finance, (Deptt. Of Expenditure), keeping in view the above direction of the Hon'ble high Court of Jammu and following has emerged:-
(a) There is no relevance of the date 1.1.96 in this particular case. The posts of Law Officers have been up graded in pursuance of the decision of the Cabinet. The Coast Guard and NSG organizations had been provided the replacement pay scales and not upgraded pay scales w.e.f 1.1.96 based upon the recommendation of 5th Central Pay Commission. The Law Officers of BSF also have got the replacement pay scales corresponding to their pre-revised pay scale as the Vth CPC relating to up gradation of posts of BSF Law Officers to bring them at par with the Law Officers in Coast Guard and NSG organizations. Hence, there is no relevance of 1.1.96 as the date on which the Law Officers of BSF should get their new pay scales in the upgraded posts.
(b) In the case of Skri G.S. Ratheesh Kumar and Ors. v. Union of India and Ors. cited by the Hon'ble High Court of Jammu, the IVth Central Pay Commission had made a specific recommendation which the Government of India implemented from the prospective date, and which the Supreme Court allowed retrospectively w.e.f 1.1.86. In the present case, no recommendation has been made by the Vth Central Pay Commission regarding up gradation of the posts, and the date of 01.01.96 has no significance. This was not the date from which either the upgraded pay scale had been granted to the Coast Guard/NSG, nor the date from which Vth Central Pay Commission had made any specific recommendation for up gradation of the pay scale of the posts of BSF Law Officers.
(c) In this case, it a conscious decision of the Govt that the existing incumbents will be appointed against the upgraded posts only when they fulfill all the requirements of the amended Recruitment Rules and posts would be operated in the present grade till regular appointments are made.
(d) As per the General Financial Rules, normally all such proposals have prospective effect only.
9. Keeping in view all the above factors, it has not been possible to grant the upgraded pay scales to the BSF Law Officers with effect from 1.1.96.
10. In view of the above, Shri D S Ahluwalia, LO Gdr-I Ftr HQrs, Jammu and other Law Officers of BSF are not entitled for the benefits of higher pay as impugned in Ministry of Home Affairs order No. 16/6/88-Pers/BSF/PF-11/391 dated 24.08.98 w.e.f 1.1.96. They will be entitled for the benefit of pay as per the said order, i,e w.e.f the date when they fulfill all the requirements under the amended recruitment rules, and are appointed against the upgraded post.
11. This order is issued with the concurrence of the Department of Legal Affairs, Ministry of Law communicated vide their Dy. No. 2102/98/Advise 'A' Section dated 18.6.99.
Sd/- xxxx
(Rakesh K. Gupta)
Deputy Secretary to the Govt of India'
The respondents have stated that the petitioner and other Law Officers cannot be granted upgraded scales prior to 24th August, 1998, as the posts in the upgraded rank and pay scales did not exist prior to the said date in the light of order No. 16/6/88-Pers/BSF/PF-II dated 24th August,1998. The petitioner, on the other hand, has prayed for a direction from this Court to quash this order to the extent of creation of new posts instead of up-gradation of the existing posts, to bring them at par with the Law Officers of Coast Guard and NSG. The petitioner has further requested for a direction to quash the order dated 22nd June, 1999 by which he and other Law Officers have been denied the benefits of upgraded posts right from the dates they are holding these posts and performing the same duties and responsibilities on the principle of 'equal pay for equal work'.
7. I have heard the arguments put across by the learned Counsel appearing for the respective parties and also perused the record of file meticulously.
8. The whole controversy in this case revolves around the date from which the petitioner and other Law Officers in the BSF would be entitled to the benefits of upgraded posts of Chief Law Officer and Law Officer Grade-I and whether they would be entitled to these benefits even prior to 24th August, 1998 when impugned letter was issued by the respondents. For facility of reference, the letter dated 24th August,1998 is reproduced below:-
'No. 16/6/88-Pers/BSF/PF-II
Government of India
Ministry of Home Affairs
New Delhi, the 24th August, 1998
To
The Director General
Border Security Force
CGO Complex, Lodhi Road
New Delhi-110003.
Sub:- UPGRADATION OF THE POST OF LAW OFFICERS IN THE BSF TO BRING THEM AT PAR WITH THEIR COUNTER PARTS IN THE NSG AND COAST GUARD.
Sir,
1. I am directed to convey the sanction of the President to the creation/abolition of the following posts to bring them at par with their counterparts in the NSG and Coast Guards:-
(a) Creation of Chief Law Officer and Chief Law Officer (Discipline & Litigation) in the BSF in the scale of pay of Rs. 16,400-20,000/- (Equivalent to DIG) by abolition of the posts in the existing revised scale of Rs. 14,300-18,300/-.
(b) Creation of Law Officer Gr.I in the scale of Rs. 14,300-18,300/-by abolishing the said posts in the existing revised scale of Rs. 12,000-16,500/-.
The amendments in the Recruitment Rules of BSF Law Officers mentioned above may be made so as to bring them at par with those of Law Officers in the Coast Guards.
3. The existing incumbents will be appointed against the upgraded posts only when they fulfill the requirements of the amended Recruitment Rules and the posts may be operated in the present grade till regular appointment are made.
4. The orders will be effective with immediate effect.
5. This issues with the approval of integrated Finance Division vide their Dy. No. 1280/98/Fin.III dated 24.8.98.
Sd/-
(Neeraj Kataria)
Desk Officer.'
9. Shri M.K. Bhardwaj, learned senior counsel for the petitioner has invited my attention to the Recruitment Rules of BSF Law Officers dated 13th April 1999 (Annexure 'D'), comparative chart of BSF recruitment Rules (old and new) and Coast Guard (Annexure 'E'), duties and responsibilities of BSF Law Officers vis--vis their counterparts in the Coast Guard and NSG and certain judgments of Honorable Supreme Court in support of his case.
10. There appears to be no dispute regarding application of the doctrine of 'equal pay for equal work' in the case of BSF Law Officers vis--vis their counterparts in the Coast Guard and NSG. The respondents, at no stage, have denied nor disputed application of this doctrine in their Counter or earlier when this Court had given liberty to the respondents to file objections, if any, before submitting comprehensive proposal to the Cabinet, vide its order dated 16th March 1998. The respondents have complied with the said order without controverting it. Even in the present counter, this aspect has not been controverted. I, therefore, do not consider it necessary to again examine the applicability of the principle of 'equal pay for equal, work', once this issue stands settled already. Moreover, my attention has also been invited by Learned Counsel for the petitioner to a note forwarded by MHA to the Secretary (Expenditure) and Chairman, Empowered Committee, Ministry of Finance, in support of the claim of BSF Law Officers. For facility of reference, the said note which is annexed with the present Writ Petition at Annexure 'B' is reproduced below:
LAW OFFICERS
The Pay Commission have recommended the following replacement scales for the Chief Law Officer and Law Officer Gde-I in NSG, ITBP & Coast Guard.
CHIEF LAW OFFICERS
______________________________________________________________________________Name of CPMFs Existing scale Scale proposed By Demanded by the Vth PC by the CPMFsNSG 5100-6150 16400-450-20000 -Coast Guard -do- -do- -ITBP 4500-5700-200+ 14300-400-18300+ -Special Pay Special pay BSF One post 4100-5300 Report is silent 16400-450-20000One post 4500-5700 Report is silent -do-Army 5900-6700 18400-500-22400 -do-LAW OFFICER GRADE -I NSG 4500-5300 14300-400-18300 -Coast Guard -do- -do- -ITBP 4100-5300 -do- -BSF 3700-5000 -do- -Army 2300-5100Rs. 15350-450-17600 1200 (Rank Pay) Rs. 2400 (Rank Pay)_______________________________________________________________________________ The Pay Commission report is silent on the Law Officers in the BSF. However, in para 63.104 of the report, the Pay Commission has observed 'pay scales of Coast Guard personnel broadly correspond to pay scales of personnel in Central Police Organisation, like BSF and certain allowances are also paid on the pattern of BSF because of their similar functions'.
Therefore, BSF has demanded the pay scales for Law Officers Grade-I and Chief Law Officers at par with Coast Guard and NSG. This is specially because, the Law Officers perform important judicial functions with regard to the implementation of the BSF Act which is similar to the Army Act. The CRPF, AR and CISF Acts are not modeled on the Army Act.
The Ministry of Home Affairs is of the view that the demand of the BSF to bring the pay scales of the Chief Law Officers and Law Officers Grade-I at par with that of the Coast Guard and the NSG is justified and needs consideration specially in view of the fact that, the BSF is a much larger force than the NSG, ITBP or the Coast Guards and the BSF Act is modeled on the Army Act. In the Army, the JAG (CLO) is of the rank of Major General in the pay scale of Rs. 5900-6700/- for which a replacement scale of Rs. 18400-500-22400/-has been recommended by the Pay Commission.
Impact in other Services
There will be no impact on other services, in fact, parity with Coast Guards and NSG will be restored.
FINANCIAL IMPLICATIONS
The financial implications would be negligible.'
11. It is evident from the above note that the MHA itself had recommended the case of BSF Law Officers to the 5th Pay Commission to grant them parity with their counterparts in the Coast Guard and NSG and when it did not materialize, again recommended their case to the Secretary (Expenditure), M.O.F (Empowered Committee). It is further evident that when empowered committee expressed its inability to examine the case on merits, the MHA submitted a comprehensive proposal to the Cabinet to bring these officers at par with their counterparts in the Coast Guard and NSG without submitting any objection to this Court inspite of the liberty having been granted to the MHA in this regard.
12. The comparative chart of Recruitment Rules of Law Officers in the BSF vis--vis their counterparts in Coast Guard reveals that for the post of Chief Law Officer in the BSF, a person who has been a member of State Judicial service for not less than a period of 15 years or a State/Central Government employee with an experience of legal affairs in a Gazetted post for not less than 15 years, is eligible. Similarly, for the post of Law Officer Grade-I, an experience of not less than 10 years in State Judicial Service or in a Gazetted post in legal department of the State/Central Government, is essential. On the other hand, in the Coast Guard, Section 115 of the Coast Guard Act, 1978, which regulates the appointments of Chief Law Officer and other Law Officers, provides an experience of 10 years in judicial service as sufficient for the post of Chief Law Officer and only six years experience in dealing with legal matters for the post Law Officer Grade-I against 15 years and 10 years, required for the post of Chief Law Officer and Law Officers Grade-I respectively in the BSF. The comparison further reveals that even the old recruitment rules of BSF Law Officers prescribed more stringent conditions of eligibility as compared to their counterparts in the Coast Guard and, therefore, there was perhaps no requirement to frame entirely new rules of Recruitment for Law Officers in BSF by repealing the earlier RRs and then bring them at par with the Recruitment Rules of General Duty Officers instead of Law Officers in the Coast Guard, more so, when this Court was apprised in writing that the respondents were amending the RRs to bring them at par with that of their counterparts in the Coast Guard. There is no explanation as to why the respondents have deviated from their stand taken before this Court in para 3 of the letter dated 24th August, 1998 (Annexure 'C'). No such intimation or permission seems to have been taken by the respondents that they were framing new RRs for Law Officers in line with the RRs of GD Officers. Ordinarily, in a case of this kind, when a letter is issued after approval of the Cabinet and is placed before the High Court with a clear stipulation, it is not supposed to be violative/diluted/deviated, without bringing it to the notice of the Court. I do not propose to pass any order with respect to the new recruitment rules of BSF Law Officers, as there is no prayer in the writ petition to interfere with the said RRs.
13. Mr. M.K. Bhardwaj, learned Senior counsel for the petitioner, in order to buttress his arguments with regard to the applicability of doctrine of equal pay for equal work and also to justify the entitlement of the petitioner and other Law Officers to claim the benefits of up-graded posts right from the dates they were holding these posts and performing same duties and responsibilities, relied upon the judgment of the Apex Court in Shri Alvare Noronha Ferriera and Anr. v. UOI and Ors., (JT 1999 (3) SC 223).
14. In this case, some Judges, whose function was dispensation of justice, had to approach the High Court for justice based on the doctrine of 'equal pay for equal work' but they were non-suited by a Division Bench of the High Court. The nub of their grievance was that when scale of pay of their counterparts in the Union Territory of Delhi was increased, while working in the same cadre in Union Territory of Goa, they were not given that pay scale. Facts are simple. On 20.12.1961, the territories of Goa, Daman and Diu were liberated from the suzerainty of Portugal in 1962 and Goa became part of the Union Territory of India. Appellants were District Judges posted in the Union Territory of Goa. On 3.9.1981 the pay scale of judicial officers (in the category of additional District & Session Judges) in the Union Territories was same as Rs. 1200-2000. In 1982 the Union Territory of Delhi increased the scale of pay of such judges to Rs. 2000-3200 while their counterparts in the Union Territory of Goa were not given any increase to keep, the scale at par with the former. When the Fourth Pay Commission was formed, representations were made by the Judicial officers of Goa to rectify the anomaly which, according to them, came into existence for the first time in 1982, but no relief was provided to them. On the contrary, the recommendations of the pay commission were for raising the scale of pay of Delhi Judges to Rs. 4500-5700 while that of Goa Judges the pay scale was raised only to Rs. 3000-5000.
15. The Division Bench of the High Court declined to grant relief, as learned Judges were unable to appreciate on what basis they could claim to be entitled to the same pay scales, as those available to Judicial Officers in Delhi. The Apex Court had allowed the appeal and observed:-
'The principal of 'equal pay for equal work' has gained judicial recognition. The principle incorporated in Article 14 when understood from the high angle provided in Article 39(d) of the Constitution is held to be the recognition of the aforesaid doctrine. It has been held in Randhir Singh v. Union of India, (1982 (1) SCC 612 that the principle 'Equal pay for equal work' is not an abstract doctrine but one of substance. Their Lordships pointed out. 'To the vast majority of the people in India the equality clauses of the Constitution would mean nothing if they ate unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay.'
16. While allowing the appeal and directing the respondent-Union of India to disburse the arrears of pay to the appellants at par with their counterparts in the Union Territory of Delhi, the Hon'ble Supreme Court also held that the nature of work of District and Session Judges is the same though in some areas pendency of cases would be higher than others. Differences in the back log are not uncommon even in two different stations of the same territory, say, in two different courts of the same station. Such lopsidedness is hardly the ground to conclude that the nature of work done by one judicial officer at one place is different from other. The duty hours would be substantially the same; the powers to be discharged are in no way different, whether they are district Judges in Goa or in Delhi. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for, such differences are discernible everywhere.
17. In Raj Bidichandani v. Union of India, (1997) 11 SCC 601, Bilingual Stenographers in Official language Wing of Ministry of Law and Justice of GOI treated on a par with Stenographers Grade 'C' in Central Secretariat Stenographers Service and given the same pay scale (Rs. 425-800)-Subsequent to the recommendation of Fourth Pay Commission, again, both Bilingual Stenographers and Stenographers Grade 'C' placed in the same revised scale (Rs. 1400-2600)- on CAT's order the Stenographers Grade 'C' placed in a still higher scale (Rs. 1640-2900) w.e.f. 1.1.1986-On an application filed by the Bilingual Stenographers on 10.12.1993, CAT finding them to be entitled to the higher revised scale (Rs. 1640-2900) on the ground of parity with Stenographers Grade 'C'- In such circumstances, while directing the Bilingual Stenographers to be paid arrears of salary in the higher scale (Rs. 1640-2900) w.e.f. the date of the application (10.12.1993), the Hon'ble Supreme Court held that CAT should have directed the notional pay of the Bilingual Stenographers in that scale to be fixed w.e.f. the date that scale was granted to Stenographers Grade 'C', i.e., 1.1.1986 and not from the later date of the Bilingual Stenographers' application, viz, 10.12.1993.
18. Again in G.S. Ratheesh Kumar and Ors. v. Union of India (WP(civil) No. 1193/1987 decided on 14 Dec 1987), the members of Ministerial Staff of BSF and CRPF, who were getting lower scale of pay as compared to their counterparts in the ITBP and CISF, had approached the Apex Court after IVth pay Commission, when the Government denied them the benefits of upgraded scale w.e.f. 1.1.1986, i.e., the date from which this scale was given to their counterparts in the ITBP and CISF. The Hon'ble Supreme Court, while disposing of the writ petition, vide its order dated 14th Dec, 1987, directed that the petitioners are entitled to the revised pay scale w.e.f. January 1, 1986, which is the date applicable to the Central Government employees, instead of 11th January, 1987. It is ordered accordingly. Ministerial Staff in the BSF and CRPF were given upgraded scale w.e.f. 11th January, 1987, i.e., the date of order of upgradation issued by the Government and not from 1.1.1986, when all employees of the Central Government including ITBP and CISF were given the benefits of the upgraded scale.
19. To further support his contention, Mr. M.K. Bhardwaj, learned senior counsel for the petitioner, referred to copy of order No. 17/32/99-Pers/BSF/Pers-III dated 13th October, 1999 issued by Government of India, Ministry of Home Affairs. For facility of reference the order is reproduced below:-
'No. 17/32/99-Pers/BSF/Pers-in
Government of India
Ministry of Home Affairs
New Delhi-110001,
Dated the, 13th October, 1999