Research › Search › Judgment

Gauhati High Court · body

2005 DIGILAW 596 (GAU)

Naorem Surchand Singh v. State of Manipur

2005-08-18

T.NANDAKUMAR SINGH

body2005
JUDGMENT T.N.K. Singh, J. 1. Under the Manipur Services (Revised Pay) Rules, 1999 as amended by the Manipur Services (Revised Pay) (1st Amendment) Rules, 1999, non-functional pay scale of Rs. 4000/- to Rs. 6000/- per month was given to all the Drivers (light vehicle) in all the departments, Government of Manipur except the Constable Drivers of the Police Department, Government of Manipur. The Petitioners, Constable Drivers (ten in numbers) filed the present joint writ petition, being aggrieved by refusal of extending the said non-functional pay scale of Rs. 4,000/- to Rs. 6,000/- per month by the Respondents to them. 2. Heard Mr. N.P.C. Singh, learned Senior Advocate assisted by Mr. N. Romeo, learned Counsel for the Petitioners and also Mr. Jalal Uddin, learned Government Advocate appearing for the Respondents. 3. The factual panorama in the present case are that the Petitioners are all Constable Drivers and they were initially appointed vide orders No. 107/SP (CR)/87 dated 9.9.1987 and No. 107/SP (CR)/88 dated 10.10.1988 respectively on the recommendation of a duly constituted DPC as Constable Drivers in the Police Department, Government of Manipur. The Petitioners, No. 1 to 6 had completed 10 (ten) years of regular service as Constable Drivers on 9.9.1997 and Petitioner Nos. 7 to 10 also have completed 10 (ten) years of regular service as Constable Drivers on 14.10.1988. 4. As per the provisions of Recruitment Rules for the post of Constable Drivers, a candidate for the post has to fulfill – (a) he must have passed Matriculation or HSLC Examination, (b) he should have a minimum height of 5 ft. 3 inches, (c) he should have a minimum chest measurement of 30 inches to 33 inches and (d) he should possess driving licence (heavy) and having knowledge of Hindi as desirable qualification. Especially for the Constable Driver, after selection he should undergo a basic training course in Police duty and discipline for a period of 9 months in the Police Training Centre and another 3 months in the Central Motor Transport (CMT) of the Police Department in Motor Mechanical Works etc. The Constable Drivers who had completed compulsorily the training courses mentioned above require to drive any vehicle such as Gypsy, Jeep, Car, Tata 407, Trucks and Buses according to demand of duties. The Constable Drivers who had completed compulsorily the training courses mentioned above require to drive any vehicle such as Gypsy, Jeep, Car, Tata 407, Trucks and Buses according to demand of duties. Duties of the Constable Driver is so onerous and arduous that there is no fixed hour for duties and they may be called for duty any time during the day, night and holiday etc. According to the Petitioners, it is said, that the duty hours of the Constable Drivers are more than those of the other Drivers in all the other departments of the Government of Manipur. The Petitioners, also it is said, state that their duties are long and inconvenient as they may be detailed for duty any time and they are constantly exposed to security risk. It is admitted case of both the parties that the Constable Drivers of the Police departments of the Government of Manipur are required to pass HSLC or Matriculation Examination but other Drivers in the other Department of Government of Manipur are required to pass only Class-VIII for their employment as Drivers. 5. The Manipur Services (Revised Pay) Rules, 1999 was amended by the Manipur Services (Revised Pay) (1st Amendment) Rules, 1999 vide notification No. 1/115/98- PIC, dated 10.3.1999 and the same was published in the Manipur Gazette Extraordinary dated 15.3.1999. According to the said Manipur (Revised Pay) Rules, 1999, as amended under (1st Amendment) Rules, 1999 the pay scale of the Drivers of all the Departments of the Government of Manipur except the Home Department are as follows: And that of the Constable Drivers are as follows: 11. Police Constable, 825-1200, 3050-4590 (Driver), 825-1200 + Driving Allowance, 3050-4590 Allowance of Rs. 100/- pm as Driving As a clarification of the Revised scale of pay of the Drivers mentioned above in the Manipur Service (Revised Pay) (1st Amendment) Rules, 1999, the Finance Department (Pay Implementation Cell), Government of Manipur issued office memorandum being No. 1/115/98-PIC (Vol-V) Imphal the 10th July, 1999 which reads as follows: No. 1/115/98-PIC (Vol-V)-The undersigned is directed to state that under the Manipur Services (Revised Pay) Rules, 1999 the pay scales of the Drivers have been revised as under: 2. Under the above pay structure, a Senior Driver/Driver (Heavy) and Driver (Light)/Jeep Driver etc is eligible for the Non-Functional scale of Rs. 4000-6000/- after 10 years of regular service in each grade. Under the above pay structure, a Senior Driver/Driver (Heavy) and Driver (Light)/Jeep Driver etc is eligible for the Non-Functional scale of Rs. 4000-6000/- after 10 years of regular service in each grade. It may so happen that a person who was holding the post of Driver (Light)/Jeep Driver etc was given appointment on promotion or the like to the post of Senior Driver/Driver (Heavy) etc. before he attained qualifying service of 10 years as Driver (Light)/Jeep Driver etc. Further, as Senior Driver/Driver (Heavy) etc he might not have put in 10 years of regular service to be qualified for the higher Non-Functional scale of Senior Driver/Driver (Heavy) etc. However, he might have served for more than 10 years of regular service as Driver (Light)/Jeep Driver etc., and Senior Driver/Driver (Heavy) etc taken together. 3. Now a question arises as to whether a Driver who has completed 10 years of regular service as Driver (Light)/Jeep Driver and Senior Driver/Driver (Heavy) taken together may be granted the Non-Functional scale of Rs. 4000-6000, under the provisions of R.O.P. 1999. 4. In this connection, the undersigned is directed to state that the Government have considered the matter in depth and decided that a Driver may be allowed the Non-Functional scale of Rs. 4000-6000/- in case he has acquired a minimum continuous service of 10 years in both the services taken together. In the said office memorandum dated 10.7.1999 nothing is mentioned that the revised scale of pay of the Drivers (Light/Jeep Drivers) for Rs. 4000-6000/- per month after 10 years of regular service in the grade for all the drivers of under the Government of Manipur will not be applicable to the Drivers (Constable Drivers) in the Police Department, Government of Manipur. But without giving any justification, not even a whisper, the said revised scale of pay of the Drivers after 10 years of regular service in the grade, i.e., Rs. 4000- 6000/- per month is denied to the Constable Drivers in the Police Department, Government of Manipur. Being aggrieved, as stated above, the Petitioners filed the present writ petition. 6. Unfortunately, the Respondents had filed a very cryptic affidavit-in-opposition in the present writ petition. In the affidavit-in-opposition of the Respondents nothing is mentioned about the justification for denying the said pay scale of Rs. 4000-6000/- per month after completion of 10 years of regular service as Constable Drivers of the Police Department. 6. Unfortunately, the Respondents had filed a very cryptic affidavit-in-opposition in the present writ petition. In the affidavit-in-opposition of the Respondents nothing is mentioned about the justification for denying the said pay scale of Rs. 4000-6000/- per month after completion of 10 years of regular service as Constable Drivers of the Police Department. Government of Manipur to the petitioners. It appears from close perusal of the affidavit-in-opposition of the Respondents that the Respondents are not denying the claim of the Petitioners for extension of the said pay scale of Rs. 4000-6000/- per month after completion of 10 years regular service as it is paid to all the Drivers in all the Departments of the Government of Manipur to them (the Police Department) on the principle of equal pay for equal work and also the law laid down by the Apex Court in a catena of cases which will be discussed at the appropriate stage of this judgment and order. 7. The learned senior counsel appearing for the Petitioners placed heavy reliance to substantiate his case on the following decisions of the Apex Court: (i) Randhir Singh v. Union of India, (1982) 1 SCC 618 (ii) D.S. Nakara v. Union of India, (1983) 1 SCC 305 (iii) Surendra Singh v. Engineer-in-Chief CPWD, (1986) 1 SCC 639 (iv) State of M.P. v. Pramod Bhartiya, (1993) 1 SCC 539 (v) Alvaro Noronha Perriera v. Union of India, (1999) 4 SCC 408 (vi) State of West Bengal v. Pantha Chatterjee, (2003) 6 SCC 469 (vii) State of Haryana and another v. Ramchander and another, (1997) 5 SCC 253 . On the other hand, Mr. Jalal, learned Government Advocate also in order to substantiate his case has referred to the following decisions of the Apex Court: (i) Supreme Court Employees Welfare Assn. v. Union of India, AIR 1990 SC 334 (ii) Union of India and other v. Dharmawati Devi and another, AIR 1989 SC 19 (iii) State of Maharashta v. Assn. of Court Stenos PA PS and another, AIR 2002 SC 555 (iv) Union of India v. Tarjit Ranjan Das, (2003) 11 SCC 658 8. v. Union of India, AIR 1990 SC 334 (ii) Union of India and other v. Dharmawati Devi and another, AIR 1989 SC 19 (iii) State of Maharashta v. Assn. of Court Stenos PA PS and another, AIR 2002 SC 555 (iv) Union of India v. Tarjit Ranjan Das, (2003) 11 SCC 658 8. Before discussing the rival contentions of the Petitioners and Respondents by placing reliance on the decisions of the Apex Court mentioned above, we may recall the decision of the Apex Court as to how the decision of the Apex Court in a case is to be understood and taken to be the precedent. The Apex Court in (i) Sarva Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd. and another, (1993) 2 SCC 386 , held that judgment is to be understood in the facts and circumstances of the case without adding anything to it and no more should be read into it than what it actually says, (ii) In Union of India and other v. Dharmawati Devi and another, (1996) 6 SCC 44 , the Apex Court held that any essence of the decision and its ratio is binding and not every observation found therein. Every decision must be read as applicable to the particular facts proved. A precedent by long recognition matured into rule of stare decisis. (iii) In General Manager, Northern Railway and another v. Savesh Chopra, (2002) 4 SCC 45 the Apex Court held that a decision of the Supreme Court is only an authority for a proposition which it decides. Proposition should not be extracted from that which the Court has not really decided. 9. The Apex Court in Union of India and other v. Dharmawati Devi and other, (supra) held that equal pay for equal work for both men and women has been accepted as a constitutional goal capable of being achieved through Constitutional remedy. In Surinder Singh and another v. Engineer-in-Chief and other, (1986) 1 SCC 639 held that the Central Government like all other organs of the State has committed to the Directive Principles of State Policy and Article 39 enshrines the principle of equal pay for equal work. In Surinder Singh and another v. Engineer-in-Chief and other, (1986) 1 SCC 639 held that the Central Government like all other organs of the State has committed to the Directive Principles of State Policy and Article 39 enshrines the principle of equal pay for equal work. The Central Government, the State Government and like otherwise, all the Public Sector Undertakings are expected to function like model and enlightened employer and argument such as that the principle of equal pay for equal work is an abstract doctrine which could not be enforced in a Court of law should ill come from the mouth of the State and State Undertaking. The Government and Public Sector Undertakings should not adopt anti-socialistic stand. In Dhirendra Chamoli v. State of U.P. (1986) 1 SCC 637 the Apex Court held that it is not open to the Government to deny the benefit of equal pay for equal work to casual workers on the ground of their acceptance of employment with full knowledge of their disadvantage. 10. Normally, whether two posts are equal or should carry equal pay depend upon several factors and it does not just depend upon either the nature of work or the volume of work. Primarily, it requires amongst others, evaluation of duties; responsibility of the respective jobs. Equation of post or equation of pay must be left to the Executive. They are the best judge to evaluate nature of duties and responsibility of post. Reference may be made to State of U.P. and another v. J.P. Chaurasia and other (supra). The Apex Court in Supreme Court Employees Welfare Assn. v. Union of India and other, (supra) held that if unequal pay is based on no classification, it would be violative of Article 14 of the Constitution of India. Para 38 of the AIR in Supreme Court Employees Welfare Assn. v. Union of India and other (supra) reads as follows: 38. It follows from the above decisions that although the doctrine of equal pay for equal work does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Article14 of the Constitution, it will be a case of equal pay for equal work as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved the doctrine of 'equal pay for equal work' will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of 'equal pay for equal work' as envisaged by Article 39(d) of the Constitution has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. Dhirendra Chamoli v. State of U.P. (1986) 1 SCC 637 is a case of equal pay for equal work, as envisaged by Article 14, and not of the abstract doctrine of equal pay for equal work. The Apex Court in State of Maharashtra v. Association of Court Steno PAPS and another (supra) held that the High Court in its discretionary jurisdiction under Article 226 of the Constitution cannot itself examine the nature of the work discharge of its employee and issue a mandamus directing a particular pay scale to be given to such employee. The Court, further, clarifies-this may not be construed as total ouster of jurisdiction of the High Court under Article 226 to examine the nature of duties of an employee and apply the principle of 'equal pay for equal work' in an appropriate case. 11. Keeping in view of the decisions of the Apex Court in Sarva Shramik Sangh, Bombay v. Indian Hume Pipe Co. Ltd. and another (supra), Union of India and other v. Dharmawati Devi and other, General Manager, Northern Railway and another v. Savesh Chopra, we may require to see the ratio laid down by the Apex Court in Randhir Singh v. Union of India and another (1982) 1 SCC 618 which being the star case basing on which the Petitioners filed the present writ petition. In Randhir Singh v. Union of India and other, (supra) Drivers of the departments/offices other than those in the Police Force under the Delhi Administration are allowed to enjoy the higher scale of pay even if all the drivers under the Delhi Police Administration are carrying out similar works and duties. The Drivers in the Delhi Police Force basing on the principle of 'equal pay for equal work' claimed the similar scale of pay as had been paid to the Drivers under different Department/Organizations under the Delhi Police Administration ana their claim had been entertained by directing to the concerned authority to extend the scale of pay similar to that of the Drivers of Departments/Offices under the Delhi Administration to the Drivers in Delhi Police Force under the Delhi Administration. On careful perusal of the Randhir Singh v. Union of India and other, (supra) this Court is of the considered view that the fact of that case is similar with that of the present writ Petitioners and also the ratio laid down therein shall also be extended to the present case. Para Nos. 7 and 8 of Randhir Singh v. Union of India and other (supra) reads as follows: 7. Our attention was drawn to Binoy Kumar Mukherjee v. Union of India and Makhan Singh v. Union of India, where reference was made to the observations of this Court in Kishori Mohanlal Bakshi v. Union of India describing the principle of 'equal pay for equal work' as an abstract doctrine which had nothing to do with Article 14. We shall presently point out how the principle, 'equal pay for equal work', is not an abstract doctrine but one of substance. Kishori Mohanlal Baksi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The higher qualifications for the higher grade, which may be either academic qualifications or experience based on length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of 'equal pay for equal work' would be an abstract doctrine not attracting Article 14 if sought to be applied to them. 8. It is true that the principle of 'equal pay for equal work' is not expressly declared by our Constitution to be a fundamental right. But it certainly is a constitutional goal. Article 39(d) of the Constitution proclaims 'equal pay for equal work for both men and women' as a Directive Principle of State Police. 'Equal pay for equal work for both men and women' means equal pay for equal work for everyone and as between the sexes. Directive Principles, as has been pointed out in some of the judgments of this Court have to be read into the fundamental rights as a matter of interpretation. Article 14 of the Constitution enjoins the State not to deny any person equality before the law or the equal protection of the laws and Article 16 declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment adopted any office under the State. These equality clauses of the Constitution must mean something to everyone. To the vast majority of the people the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. Whether the special procedure prescribed by a statute for trying alleged robber-barons and smuggler kings or for dealing with tax evaders is discriminatory, whether a particular government policy in the matter of grant of licences or permits confers unfettered discretion on the Executive, whether the take-over of the empires of industrial tycoons is arbitrary and unconstitutional and other questions of like nature, leave the millions of people of this country untouched. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. Questions concerning wages and the like, mundane they may be, are yet matters of vital concern to them and it is there, if at all that the equality clauses of the Constitution have any significance to them. The preamble to the Constitution declares the solemn resolution of the people of India to constitute India into a Sovereign Socialist Democratic Republic. Again the word 'Socialist' must mean something. Even if it does not mean 'to each according to his need', it must at least mean 'equal pay for equal work'. The principle of 'equal pay for equal work' is expressly recognized by all socialist systems of law, e.g., Section 59 of the Hungarian Labour Code, para 2 of Section111 of the Czechoslovak Code, Section 67 of the Bulgarian Code, Section 40 of the Code of the German Democratic Republic, para 2 of Section 33 of the Rumanian Code. Indeed this principle has been incorporated in several western Labour Codes too under provisions in Section 31 (g. No. 2d) of Book I of the French Code due Travail, and according to Argentinian law, this principle must be applied to female workers in all collective bargaining agreements. In accordance with Section 3 of the Grundgesetz of the German Federal Republic, and Clause 7, Section 123 of the Mexican Constitution, the principle is given universal significance' (vide International Labour Law by Istvan Szaszy, p. 265). The preamble to the Constitution of the International Labour Organisation recognizes the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions 'involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperiled". 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 Articles and maybe 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. 12. 12. The ratio laid down in Randhir Singh v. Union of India and other, (supra) are followed in D.S. Nakara v. Union of India (supra), Surendra Singh v. Engineer-in-Chief, CPWD (supra), State of M.P. v. Pramod Bhartiya and Alvaro Noronha Perriera v. Union of India (supra) and held that the principle of' equal pay for equal work' has gained judicial recognition. The principle is not an abstract doctrine but one of substance. Parameter for invoking the doctrine would include, inter alia, nature of work and common employer. Paras 10, 11 and 12, in the case of Alvaro Noronha Perriera v. Union of India (supra) runs as follows: 10. The principle of 'equal pay for equal work' has gained judicial recognition. The principle incorporated in Article 14 when understood from the angle provided in Article 39(d) of the Constitution is held to be the recognition of the aforesaid doctrine. It has been held in Randhir Singh v. Union of India that the principle 'equal pay for equal work' is not an abstract doctrine but one of substance. Their Lordships pointed out: To the vast majority of the people in India the equality clauses of the Constitution would mean nothing if they are unconcerned with the work they do and the pay they get. To them the equality clauses will have some substance if equal work means equal pay. 11. The parameters for invoking the said principles would include, inter alia, nature of the work and common employer. There can be no two views that the nature of work of District and Sessions Judges is the same though in some areas pendency of cases would be higher than others. Difference in the backlog are not uncommon even in two different stations of the same Territory, nay, in two different Courts of the same station. Such lopsidedness is hardly the ground to conclude that the nature of work done by one judicial officer at one place is different from other. The duty hours would be substantially the same, the powers to be discharged are in no way different, whether they are District Judges in Goa or in Delhi. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for such differences are discernible everywhere. But that would not make the nature of work different. It would be a futile exercise to make an endeavour for drawing a distinction between the work pattern at the two different places, for such differences are discernible everywhere. But that would not make the nature of work different. It was not necessary to cast the burden of proof on the Appellants to establish. The pendency of litigation or the norms fixed for disposal of cases by the Delhi Court to enable comparison between the nature of duties and the responsibilities carried by the officers of the Delhi Territory and the Goa Territory. 12. One admitted fact which looms large is that till hike in the pay scale was brought about in 1982 for Delhi Judges the parity maintained as between the Union Territories of Goa and Delhi applied to the same cadre of judicial officers. Nobody doubted till then that the nature and dimension of work discharged by the officers of the same cadre of judicial officers at two different Territories were different from any perceptible standard. It is for the contesting Respondents to show that there was change in the nature of work which necessitated the Government to keep two different levels of pay to the same officers working at two different places. The Apex Court in State of West Bengal v. Pantha Chatteijee, (supra) held that the Central Government cannot wrangle out of its liability to meet the expenditure in the payment of pay and allowances basing on the principle of 'equal pay for equal work' by raising technical plea of the absence of master servant relationship. 13. We, may recall the decision of the Apex Court in Roshan Deen v. Preet Lal reported in (2002) 1 SCC 100 that purpose of power conferred in High Court under Articles 226 and 227 of the Constitution of India is to advance justice, not to thwart it. Even when justice is the by-product of an erroneous interpretation of law, High Court ought not to wipe out such injustice in the name of correcting the error of law. Apex Court in Air India Statutory Corporation v. United Labour Union and other reported in 1997 (2) Supreme 165 held that the founding fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self imposed limitation. The arm of the Court is long enough to reach injustice whenever it is found. The arm of the Court is long enough to reach injustice whenever it is found. In State of Maharashtra v. Digambar reported in (1995) 4 SCC 683 , the Apex Court held that the power of the High Court to be exercised under Article 226 of the Constitution if it is discretionary, its exercise must be judicious and reasonable admits of no controversy. 14. Coming back in the present case, the Respondents had utterly failed to show any justification, reasons for denying the benefit of the said office memorandum of the Government of Manipur dated 10.7.1999 under which the Drivers (Light/Jeep Drivers) of all the Departments of the Government of Manipur are eligible for the Non-Functional scale of Rs. 4000-6000/- per month after 10 years of regular service in the grade to the writ Petitioners in the context of the present fact that the work of the Police Constable Drivers are similar with the work of those Drivers of the other Departments of the Government of Manipur and also the work of the Police Constable Drivers, as stated above, are more onerous and arduous. As held by the Apex Court in the cases cited above, the principle of 'equal pay for equal work' is not an abstract doctrine but one of substance, I am of the firm view that basing on the said principle, the Non-Functional scale of Rs. 4000-6000/- per month after 10 years of regular service mentioned in the said office memorandum dated 10.7.1999 shall also be extended to the Petitioners w.e.f. the date on which they completed 10 years of regular service in the grade as Police Constable Drivers. It is also made clear that the Respondents shall complete the process for extending the said Non-Functional pay scale of Rs. 4000-6000/- per month to the Petitioners in faithful compliance of this judgment and order within four months from the date of receipt of this judgment and order. Writ petition is allowed. Considering the entire facts and circumstances of the present case, no order as to costs. Petition allowed.