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2001 DIGILAW 377 (CAL)

State of West Bengal v. Benoy Kumar Mahato

2001-06-29

ASHOK KUMAR MATHUR, GIRISH CHANDRA GUPTA

body2001
JUDGMENT Mathur, C, J. 1. This is an appeal directed against the order passed by the learned Single Judge dated 16th March, 1994 whereby the learned Single Judge has allowed the writ petition and directed that the petitioner shall be confirmed in the post of Information Officer with effect from 1st of March, 1979. It was further directed that the petitioner shall be given the pay scale of the Information Officer with effect from date all the benefits of the pay scale and revision and other incidental benefits which the petitioner would have been entitled to. It was further directed that since the petitioner has obtained the degree of Ph.D., he shall be paid the qualification pay for such Ph.D. degree within six weeks after adjusting a sum of Rs.10,000/- which was paid to the petitioner towards qualification pay in terms of the orders of this Court. 2. The petitioner after passing graduation obtained a special Honours degree in Bengali in 1965 and, thereafter, obtained Masters degree in Bengali from Calcutta University and he was initially appointed on 24th July, 1967 as Assistant Translator in the Home (Political Department) and after rendering six years service, he was made permanent in the said post. The petitioner was awarded the Ph.D. degree by the Calcutta University in the year 1977. The post of Public Relation Officer of Jhargram Affairs was created in 1973 under Development and Planning Department for keeping effective liaison between officers of the different departments and the Minister-in-Charge of the tribal region. The petitioner has published certain articles on problems of Jhargram, a backward region, in some of the leading newspapers and periodicals. Therefore, the petitioner was picked up for appointment to the post of Public Relation Officer, Jhargram Affairs in the Pay Scale of Rs. 300-600/- with Special Pay of Rs. 50/- until further orders. Looking to the importance of the development of the area, the Government of West Bengal framed Rules for recruitment under the proviso to Article 309 of the Constitution for Jhargram region on 9th September, 1975. Thereafter, the petitioner was appointed on ad hoc basis to act temporarily in the Gazetted Post of Public Relation Officer, Jhargram region in the Pay Scale of Rs. 400-700/- with effect from July 1975. Though, the appointment of the petitioner was made for a period of 6 months, it was extended upto 12th January, 1976. Thereafter, the petitioner was appointed on ad hoc basis to act temporarily in the Gazetted Post of Public Relation Officer, Jhargram region in the Pay Scale of Rs. 400-700/- with effect from July 1975. Though, the appointment of the petitioner was made for a period of 6 months, it was extended upto 12th January, 1976. The petitioner, thereafter, made representation for fixation of his special pay and allowances. The petitioner was also granted a sum of Rs. 10,500/- in order to publish his thesis in the form of a book called "Jhargram Bengla Loksahitya". The petitioner made representations from time to time for grant of higher pay scale, that is, Rs.600-880/- with a special pay of Rs. 100/- and it was also recommended by the department. However, meanwhile the petitioner's post was transferred from Jhargram Affairs to the Information Bureau under the administrative control of Information & Cultural Affairs Department with effect from 1st of March, 1979. The petitioner who was working against this post on temporary basis also joined this post. The post of Public Relation Officer and the Information Officer, according to the petitioner, are same and similar but there is a disparity in the pay scale of the post of Public Relation Officer, Jhargram Affairs and Information Officer in Information & Cultural Affairs Department. Since the petitioner was given the charge of the post of Information Officer from 1st of March, 1979, he again made representation for the same pay scale as is admissible to the Information Officer. The petitioner continued to work in this post. On 7th May, 1980, he again made a representation to the Government that he should be given incremental benefit for his Ph. D. degree. The petitioner again contended that since he is discharging the function of the Information Officer, therefore, he should be accommodated to the post of Information Officer under the Information & Cultural Affairs Department and be given the pay scale of Rs. 450-1050/-. He has also prayed that the post of Public Relation Officer should be appropriately included in the West Bengal Information Service and Assistant Information Officer in the West Bengal Junior Information Service Class-I, but that too did not yield any remit. Therefore, the petitioner approached this Court by filing the present writ petition. 450-1050/-. He has also prayed that the post of Public Relation Officer should be appropriately included in the West Bengal Information Service and Assistant Information Officer in the West Bengal Junior Information Service Class-I, but that too did not yield any remit. Therefore, the petitioner approached this Court by filing the present writ petition. The writ petition was opposed by the State and it was contended that the qualification pay has already been discontinued with effect from 1st of April, 1981 as per the recommendation of the Pay Commission in 1981, therefore, he is not entitled to qualification pay. It was also pointed out that the petitioner's post graduate diploma is not a degree of a special and technical nature nor this degree has been declared by the administrative department in consultation with the finance department as an added qualification which is useful for the due discharge of his official duties. It was also pointed out that the petitioner was appointed as Public Relation Officer, Jhargram Affairs under the Development & Planning Department under the Rules regulating recruitment to the Gazetted Post of Public Relation Officer, Jhargram, created in the Jhargram Affairs Branch of the Development & Planning Department, Government of West Bengal. This Rule was framed under the proviso to Article 309 of the Constitution on 9th September, 1975. This Rule provided the Pay Scale of the Public Relation Officer, Jhargram Affairs as Rs. 400-15-490-20-750/- and the mode of recruitment was direct recruitment or by transfer. The petitioner was appointed in this post by way of transfer. Initially, the appointment was for a period of 6 months and it was extended. However, the service of the petitioner was placed at the disposal of the Information Bureau under the Information & Cultural Affairs Department with effect from 1st of March, 1979 in the pay scale of Rs. 400-750/-. The post of Public Relation Officer, Jhargram Affairs was declared as equivalent to the post of Assistant Information Officer carrying same pay scale under the West Bengal Information Service and Assistant Information Officer in the West Bengal Junior Information Service Class-I Rules, 1975 (hereinafter referred to as the Rules of 1975 ). 400-750/-. The post of Public Relation Officer, Jhargram Affairs was declared as equivalent to the post of Assistant Information Officer carrying same pay scale under the West Bengal Information Service and Assistant Information Officer in the West Bengal Junior Information Service Class-I Rules, 1975 (hereinafter referred to as the Rules of 1975 ). Since the Assistant Information Officer and Information and Information Officer under the Information & Cultural Affairs Department under this rule by and large perform same duty, but they carry much higher administrative responsibility, therefore, their pay scale is higher than that of the Information Officers and Public Relation Officer, Jhargram Affairs and their mode of recruitment is also separately prescribed. However, in the ROPA Rules, 1981, the pay scale for Assistant Information Officer and Public Relation Officer, Jhargram Affairs being identical, i.e., Rs. 470-1230/-. It was pointed out that the petitioner basically holds the post of Public Relation Officer, Jhargram Affairs and he has never been recruited under the Rules of 1975 and there is no order appointing him under the aforesaid rules. Though, from time to time the petitioner has approached the authorities and the department has also made certain recommendations in his favour but no order has been passed appointing him either as Information Officer under the Rules of 1975 or as an Assistant Information Officer, Class-I. 3. In this background, the learned Single Judge examined the matter and found that since the petitioner performs the same duty as being performed by the Information Officer, West Bengal Information Service and Assistant Information Officer in the West Bengal Junior Information Service Class-I, therefore, he is entitled to "same pay same work" on the anvil of Article 39(d) of the Constitution. The learned Single Judge allowed the writ petition and granted the aforesaid relief to the petitioner. Hence, the present appeal by the State. 4. Learned Counsel for the State strenuously urged before us that the service condition of the Public Relation Officer, Jhargram is regulated by the service condition laid down for recruitment to this post under the Rules of Jhargram. Separate Rules were framed for the post of Information Officer and Assistant Information Officer under the 1975 Rules under the proviso to Article 309 of the Constitution. It is also contended that there is a separate cadre for both these posts, there is separate method of recruitment to these posts. Separate Rules were framed for the post of Information Officer and Assistant Information Officer under the 1975 Rules under the proviso to Article 309 of the Constitution. It is also contended that there is a separate cadre for both these posts, there is separate method of recruitment to these posts. Therefore, it cannot be said that the persons who have been appointed under the Jhargram Rules should be deemed to have been appointed under the 1975 Rules. Since the petitioner was recruited under the Jhargram Rules and he was not recruited under the Rules of 1975, therefore, he cannot claim, as a matter of right, all benefits accruing to the post of Information Officer or Assistant Information Officer appointed under the Rules of 1975. The learned Counsel further submitted that there is no question of "equal work equal pay" because all these posts have been created under separate statutes, each post carries different administrative responsibility and duty, therefore, the principle of "equal work equal pay" is not applicable in this case. 5. The learned Counsel for the petitioner/respondent submitted that the petitioner had been performing the duties of Information Officer for a very long time and the duties of the Information Officer and that of the Public Relation Officer, Jhargram Affairs are identical, therefore, the petitioner is entitled to same pay as enshrined under Article 39(d) of the Constitution. The learned Counsel further submitted that since same duties are performed and the post is of identical nature, therefore, the petitioner should be entitled to same pay. 6. We have heard learned Counsel and perused the records. 7. The first and foremost question is whether the petitioner was born in the cadre of 1975 Rules or not. Posts are created under various rules carrying same nomenclature, but that would not mean that all the posts carrying same nomenclature should be under the same pay scale. It depends upon the nature of duties being discharged by the incumbent under the various department. In some small department there might be a post of Information Officer, the nature of the duties may be identical but if the same post in another big department carry higher responsibility then in that case it cannot be said that both the posts are the same and the duties are the same, the incumbent is entitled to identical pay scale. It depends upon the creation of post under a particular department. Simply because the nomenclature of the posts are same the incumbent should be given same pay scale cannot be accepted. In order to apply the principle of "equal work equal pay" one has to see where the post is created; the nature of the duties and the responsibilities being discharged. All these factors have to be taken into consideration for arriving at a just decision whether the provisions of Article 39(d) should be invoked in that situation or not. In the present case from the facts as stated above it is clear that the petitioner belongs to the cadre of Jhargram Affairs and he has never been recruited under the Rules of 1975, though he has been working against one of the posts of Information Officer in the department, but nonetheless his basic status is that of an Public Relation Officer in the Jhargram Affairs. It is true that his services has been utilised as an Information Officer from time to time but by that it cannot be said that he is born on the cadre under the Rules of 1975, he still continues to be in the cadre of Jhargram Affairs and unless he is recruited under the Rules of 1975 no benefit could be given to him. Both Rules are separately enacted by the Governor under the proviso to Article 309 of the Constitution and the service conditions are separate. Simply because for some reason or other the petitioner's service has been utilised against the post of Information Officer, he cannot claim the benefit of that post. He was never born on the cadre under the 1975 Rules, therefore, he cannot claim higher scale of pay which is admissible to the Information Officers recruited under the Rules of 1975. There is no order subsisting in favour of the petitioner appointing him as Information Officer by the Government under the Rules of 1975 and obviously he cannot be appointed under the Rules of 1975 unless he is recruited under these Rules, therefore, the petitioner cannot claim the benefit of the post of Information Officer under the Rules of 1975. 8. In this connection our attention was drawn to various decisions of the Supreme Court by the learned Counsel for the appellant. 8. In this connection our attention was drawn to various decisions of the Supreme Court by the learned Counsel for the appellant. In the case of (1) Kshetriya Kisan Gramin Bank v. D.B. Sharma reported in AIR 2001 SC 168 , Their Lordships observed that equation of posts or equation of pay should not be tinkered with by the Court unless actuated with extraneous consideration and it should be left to the Expert Bodies. In this case question arose with regard to pay, salary, allowances and other benefits payable to the employee of Regional Rural Bank. The Tribunal held on the basis of evidence that employees of Regional Rural Banks form a separate class under the separate statute, so are the employees of the Commercial Banks and it further held that they are entitled to claim parity with the officers and other employees of the sponsor bank in the matter of pay scales, allowances and other benefits. Their Lordships negatived the contention and held : "The concept of 'equal pay for equal work' and the concept of 'claim of parity with some others' are two different concepts and the conclusion of the High Court having been based on a misreading of the findings of the Tribunal, the said conclusion is vitiated and must be set aside." 9. Their Lordships in an identical situation as that of the present one negatived the contention of the parties and held with reference to an earlier decision of the Apex Court in the case of (2) State of U.P. v. J.P. Chaurasia, AIR 1989 SC 19, that the Court should leave the matters of equation of pay to the Executive Government, who can get it determined by expert bodies, like Pay Commission, such expert bodies would be the best Judge to evaluate the nature of duties and responsibilities of posts and when such determination by a Commission or Committee is made, the Court should normally accept it and should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration. 10. Therefore, as it is mentioned above that the incumbent was recruited under the Jhargram Rules and not under the 1975 Rules, therefore, he is not entitled to claim pay scale admissible to the persons appointed under the 1975 Rules. 10. Therefore, as it is mentioned above that the incumbent was recruited under the Jhargram Rules and not under the 1975 Rules, therefore, he is not entitled to claim pay scale admissible to the persons appointed under the 1975 Rules. Incidentally, it may be relevant to mention here that in an earlier writ petition (C.O. No. l3109(W) of 1984 decided on 21.9.89) filed by the petitioner, the Court directed the Government to examine the matter through an expert body and the Government examined and decided the matter through an expert body and gave detailed reasons which reads as under :- "The decision of the Government is that he is not entitled to the Pay Scale of Rs. 660-1600/- on the following reasons : (1) The proposal for upgradation of the pay scale of the post PRO, Jhargram Affairs was sent to the Pay Commission but the Commission did not consider such proposal. The Pay Scale of Rs. 470-1230/- has been finalised in ROPA-81 for the said post. (2) There are a good number of other posts, viz., Assistant Information Officer and Junior Administrative Officer which is equivalent in all respect to the post of PRO, Jhargram Affairs under this Department. If the post of PRO, Jhargram Affairs is upgraded to the rank of Information Officer in an isolated manner, there will be repercussion amongst the other Officers holding the equivalent posts of Assistant Information Officer. (3) Dr. Mahato was never appointed by the Government to act as Information Officer, so he cannot be given the pay scale of Information Officer. Mention of the designation of Information Officer against his name in some letters of the Director was made through clerical mistake. (4) His claim for qualification pay cannot be considered as Ph.D. Degree possessed by him was not of a specialised and technical nature and this department do not consider that the particular degree possessed by Dr. Mahato is an added qualification which is useful for the due discharge of his official duties." 11. Therefore, the matter has received due consideration of the Government and the Government has negatived the contention and rightly so. 12. Our attention was also invited to a decision of the Supreme Court in the case of (3) Gyan Prakash v. Union of India reported in AIR 1998 SC 137 . Therefore, the matter has received due consideration of the Government and the Government has negatived the contention and rightly so. 12. Our attention was also invited to a decision of the Supreme Court in the case of (3) Gyan Prakash v. Union of India reported in AIR 1998 SC 137 . There also the question arose with regard to upgradation of the Senior Subordinate Judge from Delhi Judicial Service to Delhi Higher Judicial Service. Their Lordships held that it is a policy decision of Government not to include post of Senior Sub-Judge in Higher Judicial Service and such decision cannot be interfered being violative of Article 14 of the Constitution. Therefore, creation of posts under separate Rules cannot tinker with though it may carry the same nomenclature. Simply because the incumbent was asked to work against the post that would not amount to change the basic cadre of the petitioner. 13. Similarly, our attention was also invited to a decision of the Apex Court in the case of (4) M.B. Majumdar v. Union of India reported in AIR 1990 SC 2263 , where Their Lordships held that the Tribunals cannot be equated with the High Court in all respect and the members of the Tribunal cannot claim equality with the High Court Judges or Vice-Chairman of Tribunal as regards pay and age of superannuation. 14. Hence, as a result of the above discussion, we are of the opinion that the view taken by the learned Single Judge in the present case is not warranted. However, before parting with the case, we may observe that the incumbent has been working against the post of Information Officer created under the Rules of 1975, therefore, his case has not been considered for further promotion under the Jhargram Rules. Therefore, the petitioner shall be considered for further promotion and benefits under the Jhargram Rules and his case should be considered as per persons junior to him and who have been given promotion from time to time under the Jhargram Rules. This whole exercise should be done within a period of 3 months from date. Therefore, the petitioner shall be considered for further promotion and benefits under the Jhargram Rules and his case should be considered as per persons junior to him and who have been given promotion from time to time under the Jhargram Rules. This whole exercise should be done within a period of 3 months from date. We do not want the petitioner to suffer just because he is working as Public Relation Officer, Information & Cultural Affairs Department and that should not deny the petitioner, the benefits which would have accrued to him if he continued to remain as the Public Relation Officer, Jhargram Affairs under the Development & Planning Department. Therefore, all the benefits which normally would have accrued to him under the Jhargram Rules should be given to him within a period of 3 months from the date hereof. The appeal of the State is allowed with the above direction. There will be no order as to costs. Gupta, J.: I agree.