tt, t IN THE .HIGH COTJRT OF DELHI AT NEW DELHI Reserved on: August 17,2011 Decision on: Septemb er 7, 201 1 w.P. (C) 2108/2002 N.T.P.C. STJPERVISOR'S WELFARE ASSOCIATION & ORS. ..... Petitioners Through: Mr. S.D. Singh, Advocate. versus N.T.P.C. LTD. ..... Respondent Through: Mr. Rajinder Dharvan rvith Mr. B.S. Rana, Advocates. AND . SUPERVISORY EMPLOYEES FEDERATION N.T.P.C. ..... Petitioner Through: Mr. S.D. Singh, Advocate. versus N.T.P.C. LTD. .... Respondent Through: Mr. Rajinder Dhawan with Mr. B.S. Rana, Advocates. CORAM: JUSTICE S. MIJRALIDHAR I . Whether Reporters of local papers may be allowed to see the judgment? tF 2. To be referred to the Reporter or not? J ,/ 3. Whether the judgment should be reported in Digest? v JUDGEMENT 07.09.2011 l. The NTPC Supervisory Employees' Federation has filed these two writ petitions aggrieved by the fixation of pay-scale applicable to the W8 to Wl1 categories of ttrP, (Q No.2l08 of2002 & EtE of20t I Pagc I of6 workmen .on par with the pay-scales applicable to the Supervisors in the 51 to 54 categories. 2. Writ Petition (Civil) No. 2108 of 2002 has been filed challenging the revision in the pay-scale forthe workmen in the W8 to Wl1 categories with effect from 1'tJanuary 1997 on par with the Supervisors of Sl to 34 categories as being discriminatory and violative of Articles 14 and 16 of the Constitution. It is also alleged that they are contrary to the Department of Public Enterprise ('DPE') Guidelines, the applicable rules and circulars. 3. Writ Petition (Civil) No. 818 of 2011 has been filed by the Supervisory Employees' Federation of the NTPC challenging the further revision in the pay-scales effected by the Corporate HR CircularNo. 682 of 2010. Writ Petition (Civil) No.2l08 of 2002 was permitted to be amended by an order dated22nd Decernber 2010 passed by this Cburt to add a challenge to the decision dated 8s January 2002 of the Chairman-cum- Managing Director ('CMD'), NTPC, rejecting a representation made by the Petitioners pursuant to the order dated 7th December 2001 passed by this Court in Writ Petition (Civil) No. 7423 of 2001 filed earlier by the Petitioners. 4. This Court has heard the submission of Mr. S.D. Singh, learned counsel for the Petitioners and Mr. Rajinder Dhawan, learned counsel for the Respondent. 5. It is pointed out that among eleven grades of employees in the NTPC w8 to wl I grades are of highly skilled workmen. The minimum educational qualification for the grades W5 to W7 is intermediate. A W6 category workman can be promoted as an Sl category Supervisor only if he qualifies the rvritten test, interview and viva voce. There are four categories of Supervisors : Sl to 54. ihe basic qualification for a Supervisor is either a graduate degree or a diploma. Supervisors have to appear in a departmental exam ination, kade/practice test and interview. lt4.P. (Q Na 2l 08 of2002 & 818 of20l I Poge 2 of6 I a -t) 6. Thti'main thrust of the argument of learned counsel for the petitioners is that till the revision of pay-scales made effective from I't January lgg7, the pay scales of the workmen and supervisors have always been different. With effect from I't January 1997 while the pay-scale has been increased by T2Yofor the W5 to W7 categories, for the Sl to 34 category of Supervisors it has been raised by only 66yo. According to the Petitioners, the policies of the Government of India applicable to public sector enterprises make it mandatory that revision in pay-scales should be within the approved parameters and negotiated wages should not come in conflict with the wage revision of officers and non-unionized supervisors of public enterprises. Reference is made to clause 5O of the DPE guidelines abolishing the selection grade for non- unionized employees with effect from l't J.anuary 1986. It is further stated that nohvithstanding revision of pay-scale of W8 to Wl I category workmen the selection grade was introduced in 2000 and this has caused prejudice to the Supervisors. It is pointed out that the workmen in the Wl0 category can be promoted only after passing the relevant exam ination and, therefore, W I 0 category is a feeder cadre for the S 1 post. consequently, both the posts cannot possibly have the same pay-scale. 7. lt is further submitted by the Petitioners that the Conduct, Discipline and Appeal Rules'of the NTPC would show that the annual assessment of the work of the workmen is done by the Supervisor. Further, while the Supervisors are executives and are required to declare their assets, there is no such requirement for the workmen. Up to the year 1992 the revisions effected maintained the differential pay-scale for the two categories of employees: workman and Supervisors. Reference is made to the counter affidavit filed by the NTPC in the Calcutta High Court in Writ petition (Civil) No. 10098 of 1997 (Dulal Kotal v. NTPC) where it was stated that W7 category workmen can be promoted to Sl category of Supervisors. It is submitted that arbitrary revision of the pay-scale for the w8 to wll category workmen on par with the Sl to 54 Supervisors, fufther continued in the subsequent revisions (which forms the subject matter in the Writ Petition lCivill No. 818 of 2011) is discriminatory. A direction is sought to the NTPC to grant a higher pay-scale to the Sl to 54 Supervisors vis-a-vis the workmen in the W8 to Wl1 categories. llt.P. (Q Na 2l 08 o12002 & 8tB of 20t t Page 3 of 6 to 1. 8. The impugned decision of the CMD has been assailed on the ground that it wrongly held the starting pay-scale of the workmen in the W7 to W10 category to be the same as the starting pay scale of the Sl to 54 category Supervisors. Reliance is piaced on the decision of the Division Bench of this Court in TRL Norayan v. (Jrtiort of India 1986 LAB I.C. 1671. 9. On behalf of the NTPC, it is first submitted that while reviewing the impugned order of the CMD dated 8s January 2002, the scope of interference by this Court under Article 226 of the Constitution would be limited to examining if there was any procedural irregularity. Reliance is made to Ganesh Bank, Kuruntlwad Lttt. v. (Ittiott of India (2006) 10 SCC 645.It is submitted that the starting pay-scales of Sl to 54 Supervisors as well as W7 to Wl0 workers as per 1983 pay structure, was the same. 10. Next, it is submitted by the NTPC that the Petitioners accepted the benefit of both wage structure revisions, including arrears, and, therefore, they were estopped from challenging it. The terms of employment of the workmen and of the Supervisors were different. The workmen in the W7 to Wl I categories were highly skilled. They had invariably worked for more than twenty years. Their feeder cadre was the workmen in the categories of Wl to W6. lt is further pointed out that the workmen in the W7 to Wl 1 categories usually report to the executive as do the Supervisors. In the Supervisor category there were two sources of recruitment; one by direct recruitment and the other by promotion from the workmen in the W6 or W7 grade. It is pointed out that though a one-time lateral shifting of the workmen in the W8 category and higher grade to the corresponding position of the Supervisor category was allorved, this practice had been stopped since 1995. As of now, a workman who was in the W8 or higher grade would be placed in 51 grade while protecting his pay in the grade of workman. In view of the above change brought out in 1995, virrually no workman other than in W7 category sought placement in the SI grade. I l. It is next submitted that the exercise of pay fixation was a complex one and would not usually be interfered with by the Court. Reference is rnade to the decisions in State ,YP. (q No. 2108 o12002 & |tB of20l I Pagcl oJ6 II 1{ i7 noryouo v. Haryatta Civil Secretariat Personal Staff Association (2002) 6 SCC 72' S.C. Chandra v. State of Jharkhantl (2007) I SCC 279 and Secretaryt, Firtunce Departnrent v. Pl/est Bengal Registration Service Associotiort (1993) Supp (l) SCC 153. It is submitted that in 1979 the wage structure of the Sl to 53 Supervisors and W7 to Wl0 workmen was identical. It is pointed out that even in Bharat Heavy Electricals Ltd. ('BHEL') highly skilled workmen have identical pay-scale as Supervisors. On behalf of the Petitioners, it is submitted that the BHEL guidelines applied to those concerns where the pay revision takes place after every five years whereas in the NTPC it remains fixed for ten years. The Ministry of Power, Government of India which is the administrative Ministry of the NTPC had accepted the wage structure as it is by its letter dated 8th Septemb er 2009. As regards the decision in TM Narayntt it is sought to be distinguished on facts. In the said case the question was whether a person belorrging to Delhi Higher Judicial Service could be appointed as Joint Registrar, rvhereas in the instant case the feeder cadre of Sl category iithe W7 workmen who draws a salary less than an Sl supervisor. 12. The above submissions have been heard. 13. As rightly pointed out by learned counsel for the Respondent the scope of interference by this Court in matters concerning pay fixation is limited. ln Stote of Haryana v. Haryana Civil Secretariat Persotmt Staff Associatiort, the Supreme Court explained that "the Courts should approach such matters with restraint and interfere only when they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to a section of employees and the Government, while taking the decision, has ignored factors which are material and relevant for a decision in the matter." This was followed in ^S.C. Chondra v. State of Jharkhottcl. ln Secretary, Finance Departntent v. ll/est Bengal Registration Service Association, the Supreme Court pointed out that "there are several factors which are kept in view for job evaluation and fixation of pay structures." It was observed in para 12 that"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 tt1P. (Q No. 2l 08 o12002 & 8t8 ol20t I Page 5 ot'6 \> t given cadre, (iv) minimum educational/technicalqualifications required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and vertical relativities with similarjobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc." 14. In light of the above legal position, it is seen that the Respondent in the instant case has demonstrated the basis for revision of the pay-scale for highly skilled workmen in the W8 to Wl I categories which cannot be said to be imational or unreasonable. No parallel can be drawn with the exercise of revision of pay scales for the Joint Registrars and Deputy Registrars of this Court, which formed the subject matter of the decision in TRL Narayan. Highly skilled workmen are of vital importance to the NTpC for maintaining its power plants and for ensuring that the plants are working at optimum level. Itdoesappearthateven inthe1979 paystructurethescaleof payfortheSl to 53 Supervisors and W7 to Wl0 workmen were identical. Even in BHEL, Supervisors and highly skilled workmen are given the same pay-scale. This Court is unable to find any arbitrariness or unreasonableness in equating the pay scale for the Sl to 54 supervisors and the W7 to Wl1 workmen. The factthat the W7 rvorkmen are a feeder cadre for the Sl Supervisors does not make any difference to the position. It is not possible to hold the fixation of pay scale for the W7 to Wll workmen in the NTpC to be arbitrary or unreason able vis-a-vls the Supervisors in the S I to 54 categories. 15. There is no merit in these writ petitions and they are dismissed as such, but in the circumstances, with no order as to costs. SEPTEMBER 07,2011 ad AR, J tUP. (Q Na 2108 o12002 & 8t8 of20t I Poge 6 o16 Y- S. MTTRALIDH