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1999 DIGILAW 130 (GAU)

Bimalendu Dutta v. State of Tripura

1999-04-09

N.SURJAMANI SINGH

body1999
In this writ petition the petitioners 4 in numbers sought for a direction from the end of this Court to the State respondents to implement the Govt decision as contained in Annexure 3 to the writ petition and for grant of the qualification based scale of pay to the petitioners, i.e. Assistant Electricians with effect from the date of their appointment to their respective posts as has been granted to the Draftsman Grade HI and Surveyors and also for grant of qualification based scale of pay to the petitioners as contained in the said document marked as Annexure 3 to the writ petition, ie the office letter bearing No.F.5 (26)-PC/78 dated, Agartala, the 14th September, 1978 issued by the Superintending Engineer, Planning Circle, PWD, Agartala and that of the Govt memorandum bearing No. R6(187)-PWD(E)/72(72), dated, Agartala, the 18th January, 1975 issued by the Secretary to the Govt of Tripura, Public Works Department on the subjects namely, (1) “Admissibility of qualification based scale of pay in respect of the new entrants in the posts of Surveyor and Draftsman Grade III having National Trade Certificates from Industrial Training Institute Clarification regarding" and (2) "Scale of pay for non-gazetted technical posts under the Public Works Department, Govt of Tripura and fixation of pay under the Tripura Employees (Revision of Pay and Allowance) Rules. 1963' for holders of National Trade Certificate from ITI/Certificate in Draftsmanship issues by the State Council for Engineering and Technical Education, West Bengal appointed to such posts." 2. Supporting the case of the writ petitioners Mr. KN Bhattacharjee, learned senior counsel assisted by Mr. SB Dutta, learned counsel submitted that the writ petitioners along with others approached before this Court earlier under Civil Rule Nos 3,4,5,6,7 and 8 of 1985 for ventilating their grievances in the matter and this Court by a common judgment and order dated 3rd June, 1986 made the following related observation in paragraphs 14 and 15 of the judgment which is very important and material and as such the learned counsel for the petitioners drew my attention to the said relevant portion of the judgment and order. In my considered view, it would be just and proper to examine the matter at this stage and accordingly I examined the related and operative portion of paragraphs 14 and 15 of the said judgment and it is essential to have further examination for which the said related observation of this Court is quoted below : “The above being the legal position, we consider it just and proper that the cases of the petitioners be referred by the State Govt to the Anomaly Committee. The question is whether out of the certificate holders in Class III Technical Non-Gazetted a further classification separating the Draftsman (Civil) and Surveyors and recognising them as equivalent to Sub-Overseers and giving them a higher pay scale is a reasonable classification on an intelligible differential having a nexus with / the object sought to be achieved thereby? We accordingly direct the petitioners to submit application to the State Govt stating their whole case, and we direct the State Govt to place the petitioners' case before the Anomaly Committee. While deciding the petitioners' case, we hope and trust, that the Anomaly Committee would bear in mind the observations made herein above as regards the law of equal pay for equal work and of reasonable classification of works, posts and employees for the purpose. The State Govt shall act on the basis of the report of the Anomaly Committee in this regard. We keep it open for the petitioners to move this Court if they are still aggrieved after the State acts on the Anomaly Committee's report. With the above directions and observations, the petitions are disposed of.” 3. It is also argued by Mr. KN Bhattacharjee, learned senior counsel that the post of Assistant Electrician is Class III Technical Non-Gazetted post as per. With the above directions and observations, the petitions are disposed of.” 3. It is also argued by Mr. KN Bhattacharjee, learned senior counsel that the post of Assistant Electrician is Class III Technical Non-Gazetted post as per. related Recruitment Rules and apart from it the petitioners possessed all the essential and desirable qualifications as they have undergone 2 (two) years training course under ITI which is the qualification, duration and National classification of occupations adopted by National Council for Training and Vocational Trade under the Ministry of Labour and Employment as seen in the document marked as Annexure 1 to the writ petition and by virtue of those related office order/ letters of the Superintending Engineer, Planning Circle, PWD, Agartala and that of the Govt memorandum dated 14th September, 1978 and 18th January, 1975 as in Annexure 3 to the writ petition, the writ petitioners are the holders of Class III Non-Gazetted Technical post requiring Sub-Overseer's qualification in the PWD under the Go vt of Tripura as they have undergone and completed the training for a total period of 2 (two) years after passing the School Final Examination/its equivalent and as such they should be considered as equivalent to the Sub-Overseer's qualification for the purpose of fixation of pay only in the qualification based scale of pay of Rs. 175-7231 -EB-7-245-8-325/- as per decision of the related order/memorandum dated 18th January, 1975 as mentioned above but these aspects were duly ignored by the State respondents particularly expert body namely, the Pay Commission while fixing the scale of pay of these petitioners in the grade of Assistant Electrician/equivalent. According to Mr. KN Bhattacharjee, learned senior counsel the petitioners are not claiming for equal pay for equal works but they are claiming for affording the benefits of the said memorandum of 18th January, 1975 and that of the order/office letter of 14th September, 1978 and for qualification based scale of pay which is given to the Sub-Overseer's qualification for the purpose of fixation of pay in case of the present writ petitioners and they should be treated equal to Sub-Overseers in the matter of fixation of scale of pay. 4. At the hearing Mr. 4. At the hearing Mr. S. Talapatra, learned counsel appearing for the State respondents argued that as per order and directions made by this Court m the connected Civil Rule Nos 3,4,5,6,7 and 8 of 1985, the competent authority had examined the case, of the present writ petitioners and the matter was referred to the Pay Anomaly Committee and the said committee found no fault in prescribing different scales of pay for the posts of Assistant Electricians, Surveyors and Draftsman Grade HI considering the nature of their respective jobs/works and the competent authority having due regards to the nature of works, area of performance and other relevant facts accepting the recommendation of the concerned Pay Commission and thus prescribing the Work Based Job Oriented Pay scale and in doing so neither all the respondents has ever violated any established norms or denied any justice to the petitioners nor has infringed any right of the petitioners. 5. Upon hearing the learned counsel for the parties, I am of the view that the submission of Mr. KN Bhattacharjee, learned senior counsel for the petitioners holds a little water with the following reasons : Now, this Court is to examine and see as to whether the case of the present petitioner are covered up by these Govt office memorandum dated 18th January, 1975 and the office letter of 14th September, 1978 issued by the Superintending Engineer, Planning Circle, PWD, Agartala should be enforceable of applicable in their cases and for which the related Govt memorandum dated 18th January, 1975 bearing No. F. 6( 187)-PWD(E)/ 72(72) is very much relevant and important and as such the relevant portion of the said memorandum of 18th January, 1975 is quoted below : “Sub: Scale of pay for non-gazetted technical posts under the Public Works Department, Govt of Tripura and fixation of pay under the "Tripura Employees (Revision of Pay and allowance) Rules, 1963" for holders of National Trade Certificate from ITI/Certificate in Draftsmanship issues by the State Council for Engineering and Technical Education, West Bengal appointed to such posts. The undersigned is directed to say that the question of determination the scale of pay under the 'Tripura Employees (Revision of Pay and Allowances) Rules, 1963" for certain non-gazetted technical posts carrying qualification based scale of pay (requiring Sub-Overseer's qualification under the Public Works Department held by persons possessing National Trade Certificates awarded by Industrial Training Institutes and also persons possessing certificate in Draftsmanship awarded by the State Council for Technical and Engineering Education, Govt of West Bengal was under consideration of the Govt for some time past). After careful consideration, the Governor has been pleased to direct that for such non-gazetted technical posts requiring Sub Overseer's qualification in the PWD under the Govt of Tripura the National Trade Certificate from Industrial Training Institute under the National Council for Training in Vocational Trades, under the Ministry of Labour and Employment, Govt of India, awarded after successful completion of training for a total period of 2 (two) years after passing the School Final Examination its equivalent and also the Certificates in Draftsmanship issued by the State Council for Engineering and Technical Education, Govt of West Bengal should be considered as equivalent to the Sub-Overseer's qualification for the purpose of fixation of pay only in the qualification based scale of pay Rs. 175-7-211 7-245-325A” Further, this Court is to see and examine as to whether the present writ petitioners has enforceable legal rights in the matter and apart from it, it is also necessary to see as to whether the competent authority had considered the cases of the present writ petitioners in the matter of anomaly of scales of pay and is there any infirmity in the decision making process of the expert body, like the Pay Commission as per order and direction made by this Court on the earlier occasions or not. 6. On bare perusal of the available materials on record, it has been revealed that the post of Assistant Electrical is Class III Technical Non Gazetted and the educational and other qualifications required for the direct recruitment to the said post is Class VIII passed, ITI Certificate in Electrician/wireman Trade (one year working experience is desirable) with a probational period of 2 years. It is also an admitted fact that there is no post of Sub-Overseer under the Public Works Department, Govt of Tripura and apart from it, the said memorandum dated 8th January, 1975 speaks about the entitlement of benefits to those officials who were holding non-gazetted technical post requiring Sub Overseer's qualification in the PWD under the Govt of Tripura and possessing the National Trade Certificate from the Industrial Training Institute under the National Council for Training in Vocational Trades under the Ministry of Labour and Employment, Govt of India, awarded after successfully completion of training for a total period of 2 years after passing the School Final Examination/its equivalent and also the Certificate in Draftsmanship issued by the State Council of Engineering and Technical Education, Govt of West Bengal should be considered as equivalent to Sub-Overseer's qualification for the purpose of fixation of pay only in the qualification based scale of pay of Rs 175/- to Rs 325/- only but, in the instant case the petitioners sought for a direction to the respondents to implement the said Govt decision/memorandum as in Annexure 3 to the writ petition thus, granting the qualification based scale of pay to the petitioners/Assistant Electricians with effect from the date of their appointment to their respective posts as has been granted to the Draftsman Grade in and the Surveyors. This office memorandum does not speak about the entitlement of scale of pay of the Draftsman Grade III and Surveyors to and in favour of the present petitioners who are Assistant Electricians and as such, in my considered view this memorandum of 18th January, 1975 cannot be implemented in favour of the present petitioners and rather the case of the present petitioners is not covered by the said memorandum of 18th January, 1975 and over and above this, the office letter dated 14th September, 1978 issued by the Superintending Engineer is a mere directive which cannot be implemented inasmuch as the fixation of pay of the officials and implementation of it shall be done by the expert body like Pay Commission not by the Superintending Engineer concerned. 7. The case of the present petitioners was referred to the Pay Anomaly Committee and the committee found no fault in prescribing the different scales of pay for the post of Assistant Electrician/Surveyor and Draftsman Grade III considering the nature of their respective jobs/works. 7. The case of the present petitioners was referred to the Pay Anomaly Committee and the committee found no fault in prescribing the different scales of pay for the post of Assistant Electrician/Surveyor and Draftsman Grade III considering the nature of their respective jobs/works. The demand of the present petitioners for qualification oriented scale of pay is a great misconception and as such the competent authority keeping and having due regards to the nature of work, area of performance and other relevant facts duly accepted the recommendation of the Pay Commission which is the expert body thus, prescribing the work based job oriented pay scale for the said post of Assistant Electrician and as such in my considered view the competent authorities never violated any established norms nor denied any justice to the petitioners, nor has infringed any J right of them. In this regard, I hereby recall the decision of the Apex Court rendered in Randhir Singh's case reported in AIR 1982 SC 879 wherein the Apex Court held: “...We concede that equation of posts and equation of pay are matters primarily for the Executive Govt and expert bodies like the Pay Commission and not for Courts but we must hasten to say that where all things are equal that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same. Construing Articles 14 and 16 in the light of the Preamble and Article 39 (d), we are of the view that the principle 'Equal pay for Equal work' is deducible from those scales and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.” In the instant case the present petitioners are not performing the same and similar works with those of Draftsman Grade III and the Surveyors or the non-existing post of Sub Overseer at any point of relevant time. In a case between State of West Bengal & others vs. Madan Mohan Sen & others reported in 1993 Supp (3) SCC 243 the Apex Court examined the same and the similar issue involved in the instant case and opined that the officials who are covered by different service conditions and the physical requirements of both are similar it cannot be said that the officials performed their similar duties, functions and responsibilities. The relevant portion of the judgment and observation made by the Apex Court in the said case State of West Bengal & others (supra) is quoted below: “It would be evident from a comparison of the nature of duties, responsibilities and functions of the Agragamies and firemen/leaders of Fire Service Department that they are neither same nor similar. The firemen and leaders are the members of the Fire Service Department whereas the Agragamies are members of West Bengal Civil Emergency Force meant as an auxiliary force to assist the various Govt departments and agencies in times of emergency and acute need. No doubt they are also members of a Govt service and they too have to report to their office and be available for such duties as they may be called upon to perform. But it would not be correct to say that they perform the same or similar duties as that of firemen or leaders of the Fire Service Departments. There is bound to be a difference in the quality of fire-fighting job of both of them. Firemen and leaders are a specialized fire-fighting force while the Agragamies are, so to speak 'jacks of all trades' having been given elementary training in various fields. When called upon to assist, Agragamies assist fire-fighting personnel including firemen and leaders just as they assist personnel of other departments. It is idle to contend that they perform the same duties and functions as firemen/leaders. They assist not only the Fire Service Department but Police Department, Municipal Authorities, Medical and Health Authorities, Social Sendee Department and so on and so forth. It is not clear as to why the respondents have picked upon the particular category of firemen leaders of Fire Service Department to claim particular higher pay scale. It is not as if they are attached to Fire Service Department. It is not clear as to why the respondents have picked upon the particular category of firemen leaders of Fire Service Department to claim particular higher pay scale. It is not as if they are attached to Fire Service Department. As stated rightly be the learned counsel for the State, the Agragamies are eligible for absorption as firemen/leaders in the Fire Service Department, in the case of vacancies being available, subject to eligibility and suitability. They are governed by different service conditions and merely because the academic qualifications and physical requirement of both are similar or that the Agragamies are also given a certain fire-fighting training along with other training, it cannot be said that they perform similar duties, functions and responsibilities as the firemen/leaders. The respondents have failed to establish the crucial facts entitling them to the higher pay scale. They have also failed to prove that they are discriminated in any manner in the matter of pay.” 8. For the reasons, discussions and observations made above, there is no infirmity in the decision making process of the competent authority while determining or fixing the time scale of pay of the Assistant Electrician, ie the scale of pay of the present petitioners under the related ROP Rules and as such the present petitioners could not make out a case for interference with the matter and the decision making process of the competent authority and apart from it, these writ petitioners have no enforceable legal rights in the instant case and accordingly it is dismissed with the cost of Rs. 1,0007- which shall be paid by the petitioners and the same shall be treated as part of one of the Tripura State Relief Funds and the same should be deposited with the Registry of this Court and it shall be the wisdom of the Registrar of this Court, Agartala Bench to deposit the same/with the competent authority under his best wisdom as early as possible and it is made clear that such cost shall be paid within a period of one week from today.