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2001 DIGILAW 255 (CAL)

State of West Bengal v. Bishnu Prodhan

2001-05-03

Ashok Kumar Mathur, Girish Chandra Gupta

body2001
JUDGMENT Ashok Kumar Mathur, CJ.: This is an appeal directed against the Order passed by a learned Single Judge of this Court whereby the learned Judge has directed the State Government to fix up the Gram Sevaks and Gram Sevikas in the Scale No.8 in the Revision of Pay and Allowances Rules, 1981 (hereinafter referred to as ROPA Rules 1981) i.e. Rs. 360-815/- with the benefit of two increments in the said Scale with effect from 1st April, 1981. It was also directed that the petitioners will not be entitled to any arrear after fixation of their basic pay under Revision of Pay and Allowances Rules, 1981 in Scale No.8 with two increments. It was also directed that they will be entitled to all other benefits upon fixation of the basic pay in the Scale No.8. 2. Brief facts which are necessary for disposal of this appeal are: that the writ petitioners are Gram Sevaks and Gram Sevikas (known as Village Level Workers) attached to the Rural Development Department, Govt. of West Bengal and through their Trade Union filed this writ petition seeking a Writ of Mandamus against the State of West Bengal declaring that the Rules of 1981 so far as it fixes the revised scale of the petitioners at Rs.300-685/- at par with that of the Correspondence Clerk/Clerk/Lower Division Assistant being ultra vires of Articles 14 and 16 of the Constitution and also it was prayed that the petitioners should be given the revised pay scale with effect from 1-4-1981 higher than Rs.300-685/- The case of the petitioners was that the recruitment to the post is made out of the person who has a School Final Certificate and successfully completed two years integrated course at the Training Centre for such purpose by the State of West Bengal. After selection at the written test and interview the candidates for the post were admitted at the Training Centre. During the training they got allowances and after successful training they got the job looking to the availability of the post. The job of the incumbents is to implement and execute Rural Scheme of the State Government at village level by undertaking field works. It is alleged that there is no fixed time for them and they are to attend to their job round the clock and it is a hazardous job. The job of the incumbents is to implement and execute Rural Scheme of the State Government at village level by undertaking field works. It is alleged that there is no fixed time for them and they are to attend to their job round the clock and it is a hazardous job. Therefore their grievances was that their posts have been wrongly treated at par with the Clerks and Correspondence Clerks of the different departments of the State of West Bengal. It is alleged that the minimum qualification for the post of the Clerks is the School final Certificate, after their Selection Test and interview candidates are directly absorbed on the post. It is alleged that Clerks have mostly Desk Job as against the petitioners whose job is mostly touring in the rural areas. It is alleged that prior to the Revision of Pay and Allowances Rules, 1961 the pay scale of the incumbents was higher than the Clerks. But from 1st April, 1961 the pay scale of the writ petitioners and that of the Clerks were made equal though it is alleged that the Pay Commission recommended higher pay scale for Gram Sevaks and Gram Sevikas. Again in ROPA Rules, 1970 the Clerks and Gram Sevikas were given the same pay scales i.e. Rs. 230425/-. However Second Pay Commission recommended the Scale No.5 (Rs.280595/-) for the Clerks of the common category and for the (Gram Sevaks and Gram Sevikas) writ petitioners Scale No.6 (Rs.300-685/-) was recommended. However under the Revision of Pay and Allowances Rules, 1981 which became effective from 1st April, 1981, Gram Sevaks and Gram Sevikas who were in the Scale ofRs.230-425/- under ROPA Rules 1971 were conferred revised pay scale of Rs. 300-685/- (Pay Scale No.6 under ROPA Rules, 1981) according to the writ petitioners Clerks who were recommended Scale No.5 by Pay Commission were given pay Scale No.6 by Govt. and they were brought in par with them, which is contrary to recommendation of Pay Commission. 300-685/- (Pay Scale No.6 under ROPA Rules, 1981) according to the writ petitioners Clerks who were recommended Scale No.5 by Pay Commission were given pay Scale No.6 by Govt. and they were brought in par with them, which is contrary to recommendation of Pay Commission. During the pendency of this Writ Petition Third Pay Commission was set up and the said Commission submitted their report on 13-2-1989 and in that it was observed that though the Pay Scale of Gram Sevaks and Gram Sevikas is in the scale of Rs.300-685/- looking to the fact that they are involved at the grass root level of developmental work they deserve a higher pay scale and the recommendation was made that they should be given the Scale No.7 which is corresponding to the existing scale of pay of Rs.1140-2160/-, but this recommendation was not accepted by the Government and when the ROPA Rules 1990 was framed the Gram Sevikas and Gram Sevaks were given the pay scale of Rs.1040-1920/instead of equivalent to Pay Scale No.1140-2l60/-. In this light the grievance of the writ petitioners is that the petitioners should be given a higher pay scale than that of the Clerks looking to their nature of duties which is more arduous than that of Clerks. Learned single Judge after examining the matter in detail allowed the writ petition and directed that a higher pay scale for the petitioners i.e. Scale No.8 of the ROPA Rules of 1981 i.e. Rs.360-850/- be given with two increments with effect from 1st April, 1981 and further directed that the petitioners' basic pay shall be refixed in corresponding scale under ROPA Rules 1990 and they should also be given the benefit of arrears as has been made applicable to other employees of the State. This order was directed to be implemented within three months from the date of communication of the judgment and order. Aggrieved against this order dated 17-6-1994 the present appeal has been preferred by the State. 3. This Court by order dated November 20, 1995 disposed of the application filed by the appellants for addition of parties and directed amendment of the cause title. The same is being taken on record. 4. Aggrieved against this order dated 17-6-1994 the present appeal has been preferred by the State. 3. This Court by order dated November 20, 1995 disposed of the application filed by the appellants for addition of parties and directed amendment of the cause title. The same is being taken on record. 4. Learned Counsel for the appellants has submitted that what pay scale is admissible to what class of persons is within the domain of the State and such policy decisions cannot be interfered with in a Judicial Review. He submitted that the Government after going through the recommendation of the Pay Commission as well as looking to the nature of duties discharged by the Clerks thought it proper to grant the pay scale No.6 i.e. Rs.300-685/- which was the similar to Gram Sevaks and Sevikas as was recommended by Pay Commission i.e. Scale No.6(Rs.300-685/-). This is a policy decision of the Government which cannot be made a subject of judicial review. It is pointed out that this is not a case that the persons who are similarly situated are being sought, to be discriminated. In fact the Pay Commission recommended Pay Scale of Rs.300685/- (Scale No.6) for the Gram Sevaks-Sevikas. This Pay Scale of the Gram Sevaks-Sevikas as recommended by the Pay Commission has not been changed, but it has been maintained. So far as the Pay Scale of the Clerks are concerned, the Government thought it proper to give them the Pay Scale No.6 instead of Scale No.5. That should not provide any grouse to the petitioners. So far as they are concerned, the recommendation of the Pay Commission has been accepted. Strangely enough, the Writ Petitioners Gram Sevaks and Gram Sevikas have brought this writ petition that since the Clerks were recommended pay scale No.5 by the Pay Commission but Govt. has granted them Scale No.6, therefore their pay scale should be revised and they should be given a higher pay scale i.e. scale No.7 or 8. This argument upheld by the learned Single Judge, in our opinion, is not at all justified. This is a matter of policy decision of the Government that which category or which class of persons should be given which pay scale as recommended by the Pay Commission. This argument upheld by the learned Single Judge, in our opinion, is not at all justified. This is a matter of policy decision of the Government that which category or which class of persons should be given which pay scale as recommended by the Pay Commission. If in the opinion of the Government it is found that looking to the nature and duties of the Clerks they should also be given the pay scale No.6, that should not in any manner be said to be illegal, nor can it provide any ground to the writ petitioners that they must be given a higher jump than that of the Clerks. This is not for the Courts to direct that which particular class of persons should be given which pay scale. Normally, the revision of pay scales is undertaken by a competent and expert body, who are given the task to recommend the Revision of Pay Scale. It is for the Government to consider whether the recommendation of such expert body is to be accepted in toto or with a minor modification. In the present case, the State Government felt persuaded that though the pay scale No.5 has been recommended by the Pay Commission for Clerks, but looking to the nature of duties of the Clerks it is thought proper to grant them the pay scale No.6. Such a policy decision of the Government cannot be frowned upon. So far as the Gram Sevaks and Gram Sevikas (Writ Petitioners) are concerned, Pay Commission recommended them the pay scale No.6 which has been duly granted by the Government to this class of persons. Just because Government had decided to grant same pay scale (No.6) to the Clerical Staff, that cannot provide any legitimate ground for the Gram Sevaks and Gram Sevikas to get a higher pay scale than recommended by the Pay Commission. The grievance of the writ petitioners that because the Clerks were given a lower pay scale (Scale No.5) and they are now given a higher pay scale (Scale No.6) the Government should give them higher pay scale to that of Clerks is not tenable on the anvil of Article 14 of the Constitution. We do not find any rational basis for giving a direction for allowing them higher pay scale just because Clerks have been brought at par with them. This is not a case of making equals unequal. 5. We do not find any rational basis for giving a direction for allowing them higher pay scale just because Clerks have been brought at par with them. This is not a case of making equals unequal. 5. Our attention was invited to a decision of Hon'ble Supreme Court in the case of Union of India and Ors. vs. Makhan Chandra Roy, (1997) 11 Supreme Court Cases 182. In this case in somewhat similar circumstance Central Administrative Tribunal felt persuaded to grant certain pay scales to some class of officers and the matter was taken up to the Apex Court and the Apex Court strongly deprecated the approach of the Tribunal in interfering with the grant of pay scales. In this case the pay scales were revised under the CCS (Revised Pay) Rules, 1986 and certain claims were made before the Tribunal for grant of a still higher pay scale, which was rejected. But Tribunal on its own granted to Laboratory Assistants a higher revised pay scale prescribed in the rules for Auxiliary Nurses and Midwives. Similarly, Malaria Technicians were granted a revised pay scale prescribed for Pharmacists, Radiographers and X-Ray Technicians. Their Lordships disapproved this kind of interference by the tribunal and held that this action is totally unauthorised. Their Lordships observed: "What enhanced pay scale should be given to a particular employee is within the domain of the authorities themselves who appoint them and the Tribunal should not have ventured in this forbidden field." 6. Our attention was also invited to a decision of the Apex Court in the case of Union of India and Anr. vs. P. V. Hariharan and Anr., reported in (1997) 3 Supreme Court Cases 568. There, it was observed: "We have noticed that quite often the Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunals should realise that interfering with the prescribed pay scale is a serious matter. Change of pay scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunals should realise that interfering with the prescribed pay scale is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Very often, the doctrine of 'equal pay for equal work' is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board......." 7. In the case of Union of India and Ors. vs. Pradip Kumar Dey, reported in 2000 (8) Supreme Court Cases 580, arising from this Court the question was with regard to the claim of the Naik (Radio Operator) CRPF for pay parity with the ASI, Police held that mere recommendation by the Director of CRPF to Pay Commission did not entitle any member of the CRPF a Writ of Mandamus to enforce such recommendation. Their Lordships in that context observed: "The Division Bench of the High Court was not right in granting the relief itself straight way to the respondent; that too, without examining the implications and impact of giving such directions on other cadres........." 8. In view of law laid down by Apex Court the direction given by the learned single Judge for granting a higher pay scale i.e. No.8 to the Gram Sevaks and Gram Sevikas under the ROPA Rules,1981 and then consequent on the basis their fixation in the pay scale of ROPA Rules of 1990 is absolutely unwarranted. It is not within the domain of the Courts unless there are compelling reasons and hostile discrimination of the persons who are similarly situated. The Courts cannot realise the cascading effect of disturbing the chain of pay scales given to the various categories of the employees in the State. Somewhat similar question was also examined by the Division Bench of this Court in a case where writ petition was filed by the Assistants of the District Intelligence Branches, Government of West Bengal for providing promotional avenues and grant of higher pay scales. Somewhat similar question was also examined by the Division Bench of this Court in a case where writ petition was filed by the Assistants of the District Intelligence Branches, Government of West Bengal for providing promotional avenues and grant of higher pay scales. Learned Single Judge allowed the Writ Petition and directed the State of West Bengal to create post and providing necessary promotional avenues as well as directed for grant of higher pay scale. On appeal, the Division Bench of this Court in the case of F.M.A. No.215 of 1997(State of West Bengal & Ors. vs. West Bengal District Intelligence Branches Ministerial Officers Association & Ors.) while setting aside the order of the learned Single Judge observed as under: " There is no gainsaying that in every organisation there should be an avenue for promotion which would provide proper incentive for the incumbent. But it is for the Government to see that in order to get the best out of the incumbent in what way channel of promotion should be provided and how they should organise their set up. It is a fact that stagnation brings non-performing attitude on the part of the incumbent. Therefore, for the purpose of incentive and for betterment of service, Government should open avenues of promotion for the employees. However, the State Government is the best judge and they can alone decide how to ameliorate the service condition of their employees, but the Court cannot intervene in the matter and give direction to the Government how they should set up their department or how they should organise the department that is the prerogative of the State." 9. Similarly our attention was invited to another judgment of the Division Bench of this Court in F.M.A.T. No.219 of 1988 (State of West Bengal and Ors. vs. Ranajit Ray Chaudhuri & Ors.) where a somewhat similar question arose with regard to grant of higher pay scales to the Inspectors (Weights & Measures). Therein also the learned single Judge directed the State to grant a higher pay scale to the Inspectors, Weights and Measures was set aside and it was observed as under: "Therefore, to direct that the State to pay the same pay scale or a higher pay scale to the persons falling to this group was not warranted. Therein also the learned single Judge directed the State to grant a higher pay scale to the Inspectors, Weights and Measures was set aside and it was observed as under: "Therefore, to direct that the State to pay the same pay scale or a higher pay scale to the persons falling to this group was not warranted. It is for the expert body to decide that which pay scale should be provided for which post looking to the various factors that is the job requirement, the qualification for the post and the hardship involved in discharge of duties. These are the normal factors which are taken into consideration by the expert body for deciding the pay scale. Therefore, the Pay Commission after taking into consideration various factors decided the three pay scales in Group 'C' and looking to the nature of the duties discharged in Inspector, Weights and Measures allotted a pay scale of Rs.375-650/- and the revised Rs. 470-1230/-. Hence, we are of the opinion that the view taken by the learned Single Judge is not correct and we set aside the judgement and allow the appeals of the State and dismiss the writ petition." 10. However learned single Judge had relied on an observation made by a learned single Judge of this court, Mahitosh Majumdar, J. (as his Lordship then was), in Civil Rule No.12221 of 1981 (Harinath Mitra vs. State of West Bengal and Ors.) whereby the Fire Engine Operators-Cum-Drivers were allowed Pay Scale No.9 in lieu of Scale No.7 under ROPA Rules, 1981. This case was decided on its peculiar facts and the same is distinguishable on facts. However it cannot be taken as laying down the proposition of law. Be that as it may, as we have already referred above, the decision of the Apex Court wherein it is clearly laid down that in a matter of grant of pay scales or revision of pay scales Courts tribunals should not interfere as it is exclusively within the domain of the State Government unless a proper case of discrimination is made out. In the present case, as pointed out above, there is no case of discrimination made out and the Gram Sevaks and Gram Sevikas have not been discriminated qua the Clerks. In the present case, as pointed out above, there is no case of discrimination made out and the Gram Sevaks and Gram Sevikas have not been discriminated qua the Clerks. On the contrary, the Pay Commission recommended the pay scale No.6 for the Gram Sevaks and Gram Sevikas and the same was given in the Revision of Pay and Allowances Rules, 1981. Therefore, there is no case of discrimination that the equals are sought to be treated unequally. 11. Hence, as a result of the above discussion, the view taken by the learned single Judge is not sustainable in law and the same is set aside and the writ petition is dismissed. 12. No order as to costs. Girish Chandra Gupta, J.: I agree. Writ petition dismissed.