D.K.Seth, J. - (1.) The background : This appeal is founded on the principle of Article 39(d) of the Constitution of India, namely, equal pay for equal work. The grievances of the petitioners are that though had been on the same scale of Rs. 300-600/- (prior to the ROPA Rules, 1981) were recommended in scale of Rs. 380-910/- under the ROPA Rules, 1981 along with the Inspector, Co-operative Societies, Extension Officer, Panchayat; Inspector, Statistics (NES Directorate); Research Assistant, Dairy Service; Sanitary Inspector, Grade-I, in implementing ROPA Rules, 1981, the Inspector, Minimum Wages (Agriculture) was retained in scale of Rs. 380 - 910/- (Scale 9), whereas the rest were given scale of Rs. 425 - 1050/- (Scale 10). Though discharging similar responsibility or in some cases more responsibilities, yet their claim for upgradation to Scale 10 from Scale 9 at par with the other similarly situated inspectors were turned down. The Third Pay Commission simply recommended the corresponding scale of ROPA, 1986. The Review Committee recommended Scale 10 for the same service with effect from 1st of January, 1986. But the State Government did not accept the same. The Fourth Pay Commission again directed grant of same scale to all these officers of the West Bengal Subordinate Labour Service and recommended Scale 16. (1). This subsequent recommendation of the Fourth Pay Commission was sought to be brought on record by way of an application for leave to incorporate subsequent events through which the relevant materials have since been brought on record and which were heard along with the appeal. Thus, at the same time, some of the other officers of the same cadre, who were granted Scale 9 obtained Scale 10 through writ petitions filed before this Court pursuant to orders passed therein directing grant of Scale 10. In some cases the Government itself had given Scale 10 to some of the other officers. In this background the petitioners claimed that they are entitled to a parity and identical scale with those of their counterparts, who were in scale of Rs. 300 - 600/-. Reliance was placed on various materials and decisions to support the respective contentions, which we would be dealing with at appropriate stage. (2). The writ petition filed by the writ petitioners claiming the above relief was dismissed on 1982 on the ground that the same involved certain question of fact which the Writ Court could not take upon itself to determine and that the matters were likely to be considered by the newly appointed Pay Commission in the near future before which the question might be agitated. (3). Against this judgment the present appeal has since been preferred. Admittedly, the grievances of the petitioners were based on the ROPA, 1981, namely, the Second Pay Commission, whereafter the Third Pay Commission (ROPA, 1986) had intervened at the time when the rule was discharged, since appealed against, and during the pendency of the appeal, the Fourth Pay Commission (ROPA, 1991) had intervened. In these circumstances, it is the question as to whether any fruitful result can be had on the strength of the present appeal. Appellants' contention :
(2.) Mr. Saktinath Mukherjee, learned Senior Counsel for the appellants, however, contended that the subsequent events can very well be taken note of in order to do complete justice when the facts are not in dispute and the materials upon which reliance is placed are matters of record. In support of his contention, he relied on the decisions in Ram Ratan Sahu & Ors. vs. Mohant Sahu & Ors., 1907(6) CLJ 74; Nair Service Society Ltd. vs. K.C. Alexander & Ors., AIR 1968 SC 1165 and Lekh Raj vs. Muni Lal & Ors., 2001(2) SCC 762. Relying on the decision in Purshottam Lal & Ors. vs. Union of India & Anr., AIR 1973 SC 1088, he contended that if the recommendation of the Pay Commission is accepted, it is to be accepted for all. Placing reliance upon Employees of Tannery & Footwear Corporation of India Ltd. & Anr. vs. Union of India & Ors.. AIR 1991 SC 1367, he contended that unless there is any tangible differentia in the nature of the job, all are to be equally placed. Referring to the decision in State of West Bengal & Ors. vs. Hari Narayan Bhowal & Ors., 1994(2) SLR 54, he contended that if the discrimination made is without justification, then the Court can interfere. On the basis of the ratio laid down in Bhagwan Sahai Carpenter & Ors. vs. Union of India & Anr., 1989(2) SCC 299, he submitted that there cannot be any discrimination in the same group. (1). According to him, the petitioners were and are on the group comprising the West Bengal Subordinate Labour Service within which the Inspector of Cooperative Societies etc., referred to above, are included. In order to substantiate this proposition, he drew our attention to the recruitment rules, the qualification, the condition and nature of the service, responsibilities and the duties performed. Respondents' contention :
(3.) Mr. Aninda Mitra, learned Senior Counsel, ably assisted by Mr. Joydip Kar, learned Counsel for the respondents, on the other hand, contended that these question cannot be gone into in exercise of the writ jurisdiction which are matters to be decided by expert bodies and not by the Court. For the purpose of determining the question of equal pay for equal work, various factors are to be taken into consideration. These factors are dependent on comparative studies of the duties and the responsibilities discharged, which are factual in nature and could be undertaken only by the experts in the field and the Court is not supposed to undertake such job. In support, he relied on the decisions in L. Chandra Kumar vs. Union of India & Ors.. 1997(3) SCC 261 (para-99) and State of W.B. & Ors. vs. Deb Kumar Mukherjee & Ors., 1995 Supp(2) SCC 640. He then contended that the recommendation of the Pay Commission is not binding on the State Government. Inasmuch as the report of the Pay Commission is in discharge of executive function. In case the Government does not accept the recommendation, the same would not be justiciable. The Court cannot undertake the task of job-evaluation and equation of posts. In support, he relied on Secretary, Finance Department & Ors. vs. West Bengal Registration Service Association & Ors., 1993 Supp(l) SCC 153. (1). He also contended that the qualification for recruitment in the post of Inspector, Minimum Wages (Agriculture) is undergraduate and not graduate as claimed. He referred to pages 64 and 65 of the Paper Book. Referring to page 42 of the said Paper Book, he contended that no averment for claiming parity with the four posts mentioned were available within the pleadings. The onus to establish parity is on the petitioners. In order to substantiate this proposition, he relied on the decision in State of Madhya Pradesh & Anr. vs. Pramod Bhartiya & Ors., 1993(1) SCC 539 (paras 12-13). According to him, in the absence of any materials to establish parity, no relief on equality can be granted and that the recommendation of a department is not acceptable and the recommendation does not confer any right on the petitioners. The Court has to leave such matter to the experts. It cannot examine the same except in case of hostile discrimination. To support this contention, he relied on Union of India & Ors. vs. Pradip Kumar Dey, 2000(8) SCC 580 (paras - 8, 14). (2). Relying on the decision in State of Haryana & Anr. vs. Haryana Civil Secretariat Personal Staff Association, 2002(6) SCC 72 (para-10), which in turn relied upon the decision in Pramod Bhartiya (supra). He contended that the capacity of the Government to pay is also a factor to be taken into consideration. Equal pay for equal work is not a fundamental right, though a Constitutional goal. He further contended that the implication and the impact of such grant of scale have also to be judged. In this context, he referred to the decision in Orissa University of Agriculture & Technology & Anr. vs. Manoj K. Mohanty, 2003(5) SCC 188 (paras-10, 12). He then contended that the grant of scale is a policy decision of the Government outside the domain of the jurisdiction exercised by Court, relying upon the decision in Union of India & Ors. vs. Makhan Chandra Roy, 1997(11) SCC 182. Pointing out to the ratio decided in Joint Action Council of Service Doctors' Organisations & Ors. vs. Union of India & Anr., 1996(7) SCC 256 : 1996 UJ (SO 214 (paras-2, 11, 12, 13), he drew our attention to the extent as to how far the recommendation is binding and the extent of the right of the petitioners to get such relief. (3). Pointing out to the order refusing the petitioners' claim, he submitted that the Government did not accept the recommendation on the grounds recorded in the order, which is non-justiciable. Referring to pages 20 and 21 of the Supplementary Affidavit, he pointed out that the posts are different, the responsibilities are different and that the recommendation was rejected after giving reasons and pursuant to the orders of the Supreme Court. So far as the ground with regard to the recommendation of the Fourth Pay Commission that has been urged by Mr. Mukherjee gives rise to a different cause of action, which cannot be incorporated in the writ petition, particularly, when the appeal is against an order long after which the recommendation of the Fourth Pay Commission came into existence. The reply :;