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2008 DIGILAW 337 (GAU)

Habung Rambya v. State of Arunachal Pradesh

2008-05-07

HRISHIKESH ROY

body2008
JUDGMENT Hrishikesh Roy, J. 1. Heard Mr. Nani Tagia, learned counsel appearing for the petitioner. Also heard Mr. R.H. Nabam, learned Senior Govt. Advocate who represents the official respondents. The petitioner appointed as a Draftsman with effect from 10.03.2003 under appointment order dated 29.03.2003 in the Directorate of Economics and Statistics, is before this Court seeking appropriate direction for pay equivalent to the other Draftsmen in the Directorate (Respondent No. 6). The petitioner prays for granting of the specific pay scale of Rs. 5000-8000/- p.m. from 10.03.2003, to 31.05.2003, and by virtue of the enhanced pay granted with effect from 01.06.2003, the petitioner is claiming pay in the higher scale of Rs. 6500-10,500/- p.m. from 01.06.2003 onwards. The petitioner is currently being paid salary in the lower pay scale of Rs. 5500-9000/- p.m. 2. In pursuance to an advertisement dated 12th September, 2001 advertising a post of Draftsman in the scale of pay of Rs. 4500-7000/- p.m. and the petitioner having applied and being selected, was given an offer of appointment by letter dated 17.02.2003. The said appointment letter indicates the pay scale of the post as Rs. 4500-125-7000/- p.m. The petitioner joined in the said post of Draftsman on 10.03.2003. 3. After having joined in the post of Draftsman with the pay scale of Rs. 4500-7000/- p.m., the petitioner learnt that the only other Draftsmen in the Department (Respondent No. 6) is drawing a higher pay scale while discharging the same function and working in the same grade of post. Being aggrieved, the petitioner gave a representation dated 5.12.2005 praying for up-gradation of his pay scale to the same level as that of Respondent No. 6. By order dated 31.01.2006, the representation for enhancement of pay scale at par with the Respondent No. 6 was disposed of by informing the petitioner that the higher pay scale granted to the Respondent No. 6 was on the basis of the Govt. of India's Circulars dated 13th March, 1984 and 19th October, 1994 [Annexures-IX & X to the writ petition]. The petitioner was informed that since the other Draftsmen fulfilled the criteria mentioned in the said two Govt. of India's Circulars, she has been granted the higher pay scales. 4. The petitioner, on scrutiny of the said Central Govt. of India's Circulars dated 13th March, 1984 and 19th October, 1994 [Annexures-IX & X to the writ petition]. The petitioner was informed that since the other Draftsmen fulfilled the criteria mentioned in the said two Govt. of India's Circulars, she has been granted the higher pay scales. 4. The petitioner, on scrutiny of the said Central Govt. Circular dated 19th October, 1994 found that he is also entitled to receive the benefit of the higher pay scale as provided under the aforesaid Circular with effect from 01.11.1983 after completion of 4 years of service. Since the petitioner also satisfied the criteria specified in the said two Central Govt. Circulars, a second representation dated 12.03.2007 was made by the petitioner who requested for similar pay scale granted to the Respondent No. 6. By order dated 27.08.2007, the representation of the petitioner was once again rejected by informing him that the Central Govt. Memorandum dated 19.10.1994 is applicable only to the Govt. of India's officers but not to the State Government officers. 5. Mr. N. Tagia, learned counsel appearing for the petitioner submits that the rejection of his representation by stating that the Central Government Circular/Memorandum dated 19.10.1994 is not applicable to the State Government officers cannot be accepted as a valid ground for rejection of his claim since in the first rejection order dated 31.01.2006, it was clearly reflected that the benefit of higher pay scale has been granted inter alia, to the Respondent No. 6, Draftsman in the Directorate, on the strength of the aforesaid Central Govt. Circular dated 19.10.1994. 6. The learned counsel also contends that the Recruitment Rules for the posts of Draftsman in the Directorate of Economics and Statistics, Arunachal Pradesh, hereinafter referred to as "the Rules" envisages only one grade of Draftsman. Since only two posts of Draftsman have been created, in the Directorate and the said two posts are being held by the Writ Petitioner and the Respondent No. 6 respectively, there can be no basis for granting a lower pay scale to the petitioner from that of the Respondent No. 6 since both of them are appointed as Draftsman and are discharging the same nature of duties & responsibilities under the service Rules which provides for only one category of Draftsman. 7. 7. The learned counsel for the petitioner by referring to the averments made in Para 23 of the writ petition also contended that there is no post of Draftsman Grade-II in the Directorate and the Rules do not provide for two grades of Draftsman. The attention of the Court is also drawn to the fact that the petitioner was appointed to the post of Draftsman, which, fell vacant due to the death of the earlier incumbent late Khanu Sagro and it is pointed out that late Sagro and the Respondent No. 6 have been receiving the same pay scale and there can be no legally acceptable reason as to why the petitioner have been granted lesser than the scale of pay granted to the earlier incumbent as well as the other draftsman working in the same Directorate. 8. Mr. R.H. Nabam, learned Senior Govt. Advocate, on the other hand, argues that while advertising the post of Draftsman, the pay scale for the post was clearly indicated. Also in the appointment offer made to the petitioner, it was clearly indicated that the post of Draftsman would carry the pay scale of Rs. 4500-7000/- p.m. Accordingly, it is argued that the writ petitioner is estopped from seeking a higher pay scale even if higher scale is being paid to other draftsman. 9. The learned Senior Govt. Advocate also contends that grievance with regard to pay scales/pay anomalies pertaining to the various categories of the employees are to be considered by a High Level Standing Committee constituted by the Govt. of Arunachal Pradesh vide order dated 13th December, 2007 and the grievance of the petitioner in the present case should be referred to the said Committee and ought not to be entertained by the writ Court. 10. Mr. Nabam has also drawn the attention of this Court to the Annexure-VI document dated 8th September, 2004 which indicates that there are two categories of Draftsman with their respective scales of pay in the Directorate. 11. Repelling the argument for referring the petitioner's case to the High Level Standing Committee, Mr. 10. Mr. Nabam has also drawn the attention of this Court to the Annexure-VI document dated 8th September, 2004 which indicates that there are two categories of Draftsman with their respective scales of pay in the Directorate. 11. Repelling the argument for referring the petitioner's case to the High Level Standing Committee, Mr. Tagia appearing for the petitioner submits that right to get equal pay for equal work although has not been expressly declared by the Constitution as a Fundamental Right is nevertheless an enforceable right He submits that Article 39(d) of the Directive Principles of the State Policy has assumed the status of Fundamental Rights in service jurisprudence having regard to the constitutional mandate of equality in Articles Hand 16 of the Constitution as has been held, by the Supreme Court in AIR 1991 SC 1173 : Grih Kalyan Kendra Workers' Union v. Union of India & Ors. Accordingly, it is submitted that what the petitioner is seeking to espouse is a claim of Fundamental Rights in the instant case, which has to be examined by a Writ Court and it is not a matter to be referred to the Govt. constituted committee. 12. Referring to the Supreme Court decision in Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors., reported in AIR 1986 SC 180 , the learned counsel also contends that the principle of estoppel can have no application to writ petition for enforcement of Fundamental Rights. There can also be no waiver in law of Fundamental Rights. Accordingly, it is submitted that merely because the petitioner accepted the offer of appointment made indicating a lower pay scale for the post, the assertion of Fundamental Rights by the petitioner cannot be rejected by this Court on the ground of either estoppel or waiver. It is also contended on behalf of the petitioner that when a case of breach of Fundamental Rights are made out, the Court ought not to hesitate to exercise the powers conferred under Article 226 of the Constitution to give relief to the writ petitioner. 13. It is also contended on behalf of the petitioner that when a case of breach of Fundamental Rights are made out, the Court ought not to hesitate to exercise the powers conferred under Article 226 of the Constitution to give relief to the writ petitioner. 13. Having regard to the submissions made above on the maintainability of the present writ petition, I am of the view that since the writ petitioner is coming forward in the instant case with a claim for equal pay for equal work' guaranteed under Article 39(d) of the Constitution, such claim ought not to be thrown out at the threshold in view of the decision of the Supreme Court in Grih Kalyan Kendra Workers Union (supra) where it has been held that the principle of equal pay for equal work under State employment is applicable in its full vigour and the claim of the petitioner is required to be considered on merit 14. Next this Court is to examine whether the petitioner has a right to get the same pay as given to the Respondent No. 6 and whether the examination of entitlement of the petitioner is to be referred to the High Power Committee constituted by the State Government notified by order dated 13.12.2007. 15. It is seen from the Rules that there is only one category/grade of Draftsman in the Directorate and naturally the consequence of having single grade/category of Draftsman would mean entitlement and applicability of a single pay scale. In the instant case, the Respondent No. 6 has been granted a higher scale of pay on the strength of the Central Government circulars dated 13.03.1994 and 19.10.1994 and there is nothing to indicate that the said circulars are not applicable to the petitioner or that the said circulars do not apply to the petitioner only because he is serving in the State Government since the benefit of the said Circulars has been given to the other draftsmen including the Respondent No. 6, working in the same Department under the State Government. Therefore, I am of the opinion that the petitioner cannot be denied the benefit of higher pay scale on the strength of the Central Govt. Therefore, I am of the opinion that the petitioner cannot be denied the benefit of higher pay scale on the strength of the Central Govt. Circulars dated 13.03.1994 and 19.10.1994 merely because he is serving as a draftsman under the State Government since the other draftsmen serving in the same Directorate have been given the benefit of the higher pay scale on the basis of the aforesaid Central Govt. Circulars. 16. Next issue is whether the claim of equal pay raised by the petitioner is a matter, which ought to be referred to the High Level Committee of the Government. On perusal of the notification dated 13th December, 2007 which notified the High Level Standing Committee it is seen that the responsibility of the Committee is to consider proposals for up gradation of pay scale/pay anomalies pertaining to various categories of employees of the State Government The responsibility of the High Level Standing Committee noticed above indicates that the said Committee may not be the appropriate forum for examining individual grievance, raised by the petitioner for getting equivalent pay with that of the Respondent No. 6. Therefore, the submissions made by Mr. R.H. Nabam, learned Senior Govt. Advocate that the present matter needs to be referred to the High Level Standing Committee is not found acceptable by this Court. 17. The learned Senior Govt. Advocate also refers to the Supreme Court decisions, reported in AIR 1990 SC 334 [Supreme Court Employees Welfare Association v. Union of India & Ors. and AIR 1984 SC 1221 [Delhi Veterinary Association v. Union of India] to submit that this Court ought not to entertain the writ petition praying for a higher pay scale and such matter should be left to the specialized Committee. To appreciate the submission made on behalf of the respondents, the ratio of the decisions cited has to be noted. It is seen that the Supreme Court decision in Delhi Veterinary Association (supra) was a case of disparity of pay scale of the State Government employees and employees working under the Union Territory of Chandigarh. To appreciate the submission made on behalf of the respondents, the ratio of the decisions cited has to be noted. It is seen that the Supreme Court decision in Delhi Veterinary Association (supra) was a case of disparity of pay scale of the State Government employees and employees working under the Union Territory of Chandigarh. In that case, the grievance was not dealt by the Court as the 4th Pay Commission was to consider the very same grievances which was raised before the Court Here the Supreme Court cautioned the High Court in intervening in such matter relating to pay anomalies of two different streams of employees in exercise of its writ jurisdiction. In the other case of Supreme Court Employees Welfare Association (supra) the Supreme Court held that it would not be appropriate for the Court to fix the pay scale of the employee although the Supreme Court also observed that Court can intervene when there is any violation of Fundamental Rights. Present however is not a case where the petitioner is seeking revision of pay scale of the cadre of Draftsman or asking for a fixation of a different pay scale then what is prescribed for Draftsman under the Rules. Instead the petitioner is making a claim for same pay as has been granted to the Respondent No. 6, Draftsmen discharging the same nature of duties and responsibility and working in the same grade as that of the writ petitioner. Therefore, this case in my opinion is not to be dealt with in light of the above 2 decisions cited by the learned Sr. Govt. Advocate and can be dealt with by a Writ Court on merit. 18. This is a case of denial of equal pay as is given to other draftsmen discharging the same responsibility and working in the same grade as that of the writ petitioner. The contention of the learned Senior Govt. Advocate that there are 2 categories of Draftsman on the basis of Annexure VI document is not accepted since the Rules do not provide for such categorization and only single category of Draftsman are provided under the Rules. If the Govt. wanted to have two categories of Draftsman, nothing prevented it from providing for the same under the Rules. 19. Advocate that there are 2 categories of Draftsman on the basis of Annexure VI document is not accepted since the Rules do not provide for such categorization and only single category of Draftsman are provided under the Rules. If the Govt. wanted to have two categories of Draftsman, nothing prevented it from providing for the same under the Rules. 19. It is held by the Supreme Court in Olga Tellis (supra) that there can be no estoppel against the assertion of Fundamental Rights under the condition. Therefore only because the offer of appointment to the post with a lower pay scale was accepted by the petitioner, it cannot be held that the claim of the petitioner for equal pay should be rejected on the principle of estoppel and waiver. At the time of accepting the offer of appointment and joining the service, the writ petitioner could not have known that in the other post of draftsman in the same Directorate where the Respondent No. 6 is working, she is getting a higher pay scale. In such circumstances, the contentions raised on behalf of the respondents for applying the principle of Estoppel and Waiver are rejected. 20. A government employer is bound by the constitution to make no discrimination. It cannot pay different pay scales to employees working in the same cadre and discharging the same responsibilities unless it is able to show that the petitioner and respondent No. 6 belong to 2 different class of employees which justifies differential treatment. But nothing could be placed by the respondents to show that there are 2 class or draftsman. On the contrary the Service Rules provide for only 1 class of the Draftsman. The earlier incumbent in the post held by the petitioner was also given the higher pay scale at par with Respondent No. 6. The Govt. justified the pay scale of Respondent No. 6 in its order dated 31.01.2006 on the basis of the 2 Central Govt. Circulars dated 13.3.1984 and 19.10.1994 (Annexure-IX & X) and nothing is on record to show that the benefit of the said two Govt. of India circulars are not to be given to the writ petitioner who is no different from the other draftsman in the Directorate. Therefore, it is a clear case of violation of the Fundamental Rights of the petitioner to receive equal treatment from the Respondent Government. 21. of India circulars are not to be given to the writ petitioner who is no different from the other draftsman in the Directorate. Therefore, it is a clear case of violation of the Fundamental Rights of the petitioner to receive equal treatment from the Respondent Government. 21. In view of the foregoing reasons, this writ petition is allowed. The Respondent Authorities are directed to give the benefit of pay to the writ petitioner at par with the scale of pay given to the Respondent No. 6 working in the same post and in the same Directorate, in terms of the prayers made in the Writ Petition. Necessary steps in this regard may be taken in 3 months. A copy of this order be made available to Mr. R.H. Nabam, learned Sr. Govt. Advocate for communication to the appropriate authorities.