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2001 DIGILAW 85 (GAU)

State of Tripura v. Deba Prasad Nag

2001-03-29

B.B.DEB, N.SURJAMANI SINGH

body2001
N. S. Singh, J.- Heard Mr. S. Chakraborty, learned counsel for the appellants. Also heard Mr. S. Talapatra, learned counsel for the respondent. 2. The judgment and order dated 6.3.97 passed by the learned Single Judge of this Court in Civil Rule No. 151 of 1995 is the subject matter under challenge in this writ appeal. 3. The writ petitioner, respondent of this appeal, had questioned the validity of the impugned Govt office order/letter dated 22.7.89 (Annexure 5 to the Civil Rule No. 151 of 1995) redesignating the post of Superintendent of Store as Store Keeper with present, modified and revised pay scale attached with the said post in the following order ie Rs. 600-1,440 (present scale) the modified present scale of Rs. 650-1,5957- and Rs 1,450-3.710 (revised scale) and also made a claim for a his right to continue in the post of Superintendent of Store with his pay scale of Rs 750-1,7507- with effect from the date of introduction of Revision of Pay Rules, 1982 (herein after referred to as the ROP Rules, 1982) and also the pay scale of Rs. 2,000-4,410 with effect from the date of introduction of Revision of Pay Rules, 1988 (herein after referred to as the ROP Rules, 1988) by contending, inter alia, that the writ petitioner is a Diploma holder in Mechanical Engineering who initially joined in the post of Supervisor Grade I under the National Projects Construction Corporation (NPCC) at Jatanban and thereafter he was appointed to the post of Superintendent of Stores in the Polytechnic Institute (Education Department), Agartala with effect from 14.3.73 in terms of the related service rules/recruitment rules as seen in the document marked as Annexure 2 to the writ petition. According to the writ petitioner, the pay scale of the post of Superintendent of Stores and the pay scale of the post of Overseer of other departments have been raised to Rs 600-1,440 as the said two posts are of equivalent nature from the very beginning. But by virtue of the impugned office order dated 22.7.89, the post of Superintendent of Stores was redesignating as Store Keeper with a revised pay scale of Rs. But by virtue of the impugned office order dated 22.7.89, the post of Superintendent of Stores was redesignating as Store Keeper with a revised pay scale of Rs. 1,450-3,710 and being aggrieved by this action of the official res pendents, the writ petitioner submitted representation to the appropriate authority against the re-designation of the post of Superintendent of Stores and the pay scale given against the said post and even the case of the petitioner was considered by the Principal, Polytechnic Institute who forwarded the case of the petitioner in the prescribed form to the Pay Anomaly Committee of the Govt of Tripura with a recommendation for time scale of pay of Rs. 2,000-4,410. But the Pay Anomaly e Committee did not consider the case of the petitioner despite the submissions of a number of representations in that regard. The petitioner also compared the nature of duties of the Superintendent of Stores with that of Superintendent of Stores working under the Health & Family Welfare Department, Govt of Tripura and also contended that the duties and functions discharged by the Superintendent of Stores under the Health & Family Welfare Department are quite same and similar with the duties and functions of the Store Keeper like the present writ petitioner. But the Superintendents of Stores under the Health & Family Welfare Department have been given the time scale of pay of Rs. 2,000-4,4107-, but such benefit of time scale of pay is not given to the writ petitioner. The learned Single Judge of this Court examined the case of the petitioner under Civil Rule No. 151 of 1995 and finally disposed of the same under impugned judgment and order dated 6.3.97 with a direction to absorb the petitioner to the post of Superintendent of Stores for which he was initially appointed and he should also be given the pay scale of Rs. 2,000-4,4107- with effect from the date of introduction of the ROP Rules, 1988 within a period of four weeks. Being dissatisfied with the impugned judgment of the learned Single Judge, the State of Tripura filed this writ appeal. 4. Mr. 2,000-4,4107- with effect from the date of introduction of the ROP Rules, 1988 within a period of four weeks. Being dissatisfied with the impugned judgment of the learned Single Judge, the State of Tripura filed this writ appeal. 4. Mr. S. Chakraborty, learned counsel for the appellants contended that the Superintendents of Stores of the Health & Family Welfare Department is governed by the separate recruitment rules and likewise, there is a different recruitment rules for the post of Superintendent of Stores in Polytechnic Institute and therefore, the petitioner cannot claim as of right the benefit of time scale of pay attached with the post of Superintendent of Stores of the Health Department as the matter pertaining to the pay anomaly or such claim is to be decided by the expert body or the official respondents concerned and as such the writ Court cannot issue a direction to the official respondents for affording the equal pay of Superintendent of Stores of Health Department to the present petitioner. It is also submitted by Mr. Chakraborty, learned counsel for the appellants that the learned Single Judge did not compare whether the works performed by the writ petitioner as Superintendents of Stores are similar and identical to the works performed by the Superintendent of Stores of the Health Department and the nature, and whether, the nature and duties of the two posts are same and similar. It is also submitted by the learned counsel for the appellants that duties and functions of the Superintendent of Stores held by the present writ petitioner are quite different from the duties and functions of the Superintendent of Stores in the Health & Family Welfare Department and as such the learned Single Judge erred in law in directing the official respondents for affording time scale of pay of Rs. 2,000-4,410 to the writ petitioner with effect from the date of introduction of the ROP Rules, 1988 which amounts to a substitution of a new decision to the decision of an Expert Body like Pay Anomaly Committee. 5. Mr. 2,000-4,410 to the writ petitioner with effect from the date of introduction of the ROP Rules, 1988 which amounts to a substitution of a new decision to the decision of an Expert Body like Pay Anomaly Committee. 5. Mr. S. Talapatra, learned counsel for the respondent-writ petitioner contended that there is no infirmity or illegality in the impugned judgment passed by the learned Single Judge as the writ petitioner possesses the essential qualification of the Superintendent of Stores of the Department of Health & Family Welfare and other departments also and as such the principal of parity in time scale of pay for these posts of Superintendent of Stores should be maintained by the competent authority and, if it is not maintained, it will amount to discrimination. Mr. Talapatra, learned counsel for the respondent-writ petitioner went on to contend that the Principal, Polytechnic Institute had recommended the case of the writ petitioner for affording the time scale of Rs. 2,000-4,410 to the writ petitioner to the concerned Pay Anomaly Committee of the State long back, but the same was not properly examined by the authority concerned. In other words, the authority concerned has failed to perform the duties and responsibilities conferred upon them by law thus denying the legitimate rights of the writ petitioner. The learned counsel for the respondent, writ petitioner submitted that the writ petitioner has already retired from service, but the litigation is now going on for the relief's sought for by him. 6. Now this Court is to examine as to whether the impugned judgment passed by the learned Single Judge suffers from illegality or irregularity and whether the writ petitioner, respondent herein has enforceable legal right in the instant case at hand or not. 7. There is a separate service rules i.e. the recruitment rules for the post of Superintendent of Stores in Polytechnic Institute under the Govt. This is not disputed by the parties. It is also an admitted position that despite the existence of recruitment rules for the post of Superintendent of Stores in the Polytechnic Institute, the respondent-Govt had issued the impugned order/letter dated 22.7.89 as in Annexure 5 to the writ petition thus redesignating the post of Superintendent a of Stores as Store Keeper with the latest revised scale of pay of Rs. 1,450-3,710. 1,450-3,710. In our considered view, this impugned order of the Govt cannot override the statutory rules framed under Article 309 of the Constitution, ie the Recruitment Rules for the post of Superintendent of Stores in the instant case. Therefore, on this ground alone, the impugned order of the Govt dated 22.7.89 to the extent of re-designation of Superintendent of Stores to Store Keeper is illegal and the ^ same is null and void, rather not tenable in the eye of law as an administrative order or instruction cannot override the statutory rules which is the settled law of the land. Therefore, the writ petitioner, respondent herein shall be treated as a Superintendent of Stores in the Polytechnic Institute. 8. The next question arises in the instant case is that whether the functions c and duties of the Superintendent of Stores of Polytechnic Institute are same and similar with the functions and duties of Superintendent of Stores in the Department of Health and Family Welfare or other departments. This issue can be decided properly by the expert body only considering the nature of the present case; and the writ petitioner could not highlight the actual duties and functions performed by him and that of the Superintendent of Stores of Health Department and other d departments. It is true the "principle for equal pay for equal work" is deducible from Articles 14 and 16 and Article 39 (d) of the Constitution and in the light of the Preamble it may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those employees drawing the different scales of pay do identical works and discharge the same duties under the same employer or under different employer. Now, another question arises, who is the best authority? Who can decide this? The answer is the body who expertise in the matter that generally we call either Pay Anomaly Committee or Pay Commission whatsoever the case may be. It is not the inherent duty and power of the Court while exercising the extra-ordinary power under Article 226 of the Constitution of India to examine all the complex and disputed question of facts involve in the present case. It is not the inherent duty and power of the Court while exercising the extra-ordinary power under Article 226 of the Constitution of India to examine all the complex and disputed question of facts involve in the present case. It is also true that equation of posts and equation J of pay are the matters primarily for executive Govt and expert bodies like Pay Commission as discussed above and not for the Courts. But one tiling the Court always bear that where all things are equal i.e where all relevant consideration are the same persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to the different departments. Of course, if officers of the same rank perform the dissimilar functions and 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 same rank and nomenclature is the same. Here, in the instant case also, the writ petitioner could not establish the identity and the similarity of the functions and duties performed by him and that of the other Superintendent of Stores in other departments who are carrying the higher pay scales which had already been determined by the expert body. 9. At this stage, we may refer a decision of the Apex Court in the case of State of Madhya Pradesh & others vs. Pramod Bhartiya & others reported a in (1993)1 SCC 539 wherein the Apex Court held that the burden to establish right to equal pay for equal work lies on the person who claims it and it is not enough to say that the qualifications are same or institutions are of the same status or service conditions am similar and, -what is roof important and crucial is quality of work may vary from post to post. Here, in the instant case, the post held by the writ petitioner and that of the Superintendent of Scares in Heakh & Family Welfare Department are governed by different service conditions and merely because the name of me posts and physical requirements of both are similar, it cannot be said that they perform the similar duties, functions and responsibilities A reference can be given to support these observations of ours to a decision of the Apex Court rendered in State of West Bengal vs. Madan Mohan Sen reported in 1993 Supp (3) SCC 243 wherein the Apex Court held thus : "But it would not be correct to say that they perform the same or similar duties as that of fireman or leaders of the Fire Service Department There is bound to be a difference in the quality of fire fighting job of both of them. Fireman and leaders are a specialised 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 fireman and leaders just as they assist personnel of other departments. It is idle to contend that they perform the same duties and function as fireman/leaders. They assist not only the Fire Service Department but Polios Department, Municipal Authorities, Medical and Health Authorities, Social Service Department and so on and so forth. It is not dear as to why the respondents have picked upon die particular category of fireman/ leaders of Fire Service Department to claim a particular higher pay scale, ft is not as if they are attached to Fire Service Department. As stated rightly by the learned counsel for the State, the Agragamies are eligible for absorption as fireman/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 fireman/leaders. The respondents have laited 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" 10. The respondents have laited 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" 10. Applying these established principles of law and also considering the nature of the case, we are unable to agree with the findings and observations of the learned Single Judge directing the official respondents to afford the pay scale of Rs. 2,000-4,4107- with effect from the date of introduction of ROP Rules, 1988 within a period of four weeks from the date of the judgment as we are of the view that these directions and observations of the learned Single Judge are not under the domain and jurisdiction of this Court. However, it is made clear that the writ petitioner shall be treated as a serving Superintendent of Stores at the relevant time till the date of his retirement and he should be entitled to all service benefits attached to the said post of Superintendent of Stores in Polytechnic Institute of the Education Department, Govt of Tripura. 11. For the foregoing reasons, observations and discussions made above, the writ appeal is partly allowed to the extent indicated above thus setting aside the relevant observations of the learned Single Judge to the extent of affording the benefit of time scale of pay of Rs. 2,000-4,410 to the writ petitioner, but no order as to costs. 12. Despite disposal of this writ appeal, we are constrained to make the following order and observations considering the nature of the case: The official respondents are directed to afford the service benefits and other retiral benefits to the writ petitioner, respondent herein, as early as possible by treating that he had been holding the post of Superintendent of Stores at the relevant time till the date of his retirement, and that the retiral benefit entitled to the writ petitioner should not be delayed.