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2012 DIGILAW 253 (ORI)

Tapan Kumar Behera v. State of Orissa

2012-05-16

B.K.NAYAK, B.P.DAS

body2012
JUDGMENT B.K. NAYAK, J.- The petitioner in this writ application challenges the judgment dated passed by the learned Orissa 08.01.1999 Administrative Tribunal, Bhubaneswar Bench, Bhubaneswar in O.A. No.197/89 (Annexure1) and prays further to direct the opposite parties, State Authorities to pay the petitioner revised scale of pay equivalent to the pay prescribed for senior scale of IPS or pay prescribed for Commandants in State Service with effect from 01.01.1986 along with interest. 2. The case of the petitioner is that the S.P. (Signal) is a State cadre post but since its creation in 1948, the State Government continued to confer certain benefits including pay scale and allowances equivalent to Senior time scale of pay of IPS Officers as per the IPS Pay Rules, 1954, as revised from time to time by the Central Pay Commission. Accordingly, when senior scale of pay of IPS was revised to Rs.1200 (6th year or under)-50-1700 with effect from 01.01.1973, the State Government vide resolution No.55448/ P dated 04.12.1976, provided a scale of pay for both the posts of S.P. of Signals Branch at par with the scale of pay of the senior scale of IPS with effect from 01.01.1974. The 4th pay commission for the State Government employees was constituted by the State Government on 19.09.1981. Though the State Government referred cases of some similarly situated posts of police Department having identical scale of pay as that of IPS, it did not refer the case of both the S.P. ranks of Signal Branch to the 4th pay commission. Much before the final acceptance of 4th pay commission recommendation, which culminated in publication of ORSP Rule 1985, the petitioner brought to the notice of the I.G. of police about non-examination of the pay scales of the S.P. Signals by the 4th Pay Commission. The ORSP Rules 1985 did not contain any revised pay scale for the posts of S. P. Signals. In the meantime, the senior scale of IPS was revised with effect from 01.01.1986. Instead of revising the pay scale of S.P. Signals at par with the revised senior pay scale of IPS, the State Government vide notification No.60003/F dated 26.12.1987 prescribed a revised scale of pay only for one post of S. P. Signals, which was not identical to the senior scale of pay of IPS. Instead of revising the pay scale of S.P. Signals at par with the revised senior pay scale of IPS, the State Government vide notification No.60003/F dated 26.12.1987 prescribed a revised scale of pay only for one post of S. P. Signals, which was not identical to the senior scale of pay of IPS. Due to this, the post, which was being occupied by the petitioner, became inferior to many other posts under the State Government with whom it had similar/comparable status from 1948 to 1984. Besides, it also became a lower rank posts in police department because posts of same rank in the State got higher scale of pay. 3. It is stated in the writ application that for Administration of the Signal Branch of the State Police, initially a post of Special Tapan Kumar Behera VRs. State of Orissa Officer was created vide Government order dated 19.08.1948 (Annexure-4) in the scale of pay of Rs.600-1150, which was identical to the then Senior Scale of IPS. In 1950 vide Government Notification No.16109/P dated 25.10.1950 the post of Special Officer was re-designated as S.P., Transport & Signals and vide G.O. No.468 dated 29.04.1955, it was again re-designated as S.P., Signals. As apparent from the correspondence made by the I.G. of Police to the Secretary, Home Department under Annexure-5, the State Government vide their letter no.14742/P dated 24.06.1963 revised the pay for the post of S.P. Signals from Rs.600-1150 to Rs.740-1300, which was identical to the revised senior scale of IPS, without putting the condition, 6th year or under' which condition was available at the initial stage of revised senior scale of pay of IPS. This condition restricts the initial pay of direct recruit of IPS Officer for certain years as because such direct recruits start their service in junior scale of IPS and on promotion to senior scale, they are required to complete certain number of years of service to earn their first increment in senior scale. This condition was not applicable to a State Police Service Officer, who was promoted to IPS and on such promotion he earns his next increment in the senior scale after completion of one year of promotion. This condition was not applicable to a State Police Service Officer, who was promoted to IPS and on such promotion he earns his next increment in the senior scale after completion of one year of promotion. Vide letter dated 15.07.1963 (Annexure-7), the Accountant General, Orissa sought certain clarification from Secretary to Government of Orissa, Home Department stating that the clause, 6th year or under' as prescribed in the Government of India, Ministry of Home Affairs letter dated 28.02.1962 revising the senior time scale of IPS may not perhaps apply while fixing revised scale for the post of S.P. Signals, which was then held by one Mr. A. P. Mohanty. In turn the Government in their letter dated 03.08.1963 (Annexure-8) replied to the Accountant General, Orissa that the clause, 6th year or under' in the senior scale of IPS will not be made applicable while fixing the pay of Mr. A.P. Mohanty, S.P. Signals in the revised scale of pay of Rs.740-1300. Again vide letter dated 30.08.1963 (Annexure-9), the Accountant General, Orissa wrote to the State Government in the Home Department with reference to its letter under Annexure-8 doubting the correctness of omitting the clause 6th year or under' while revising the pay scale of S.P. Signals on the ground that if the revised pay scale of IPS would be applicable to the S.P. Signals, the omission of the clause will confer additional benefits on the holder of the said post, which would not be justified, and accordingly sought for clarification from the Government. 4. It is further stated in the writ application that vide Government order dated 16.2.1971 (Annexure-10), the post of S.P. Signals was upgraded to the post of D.I.G. of Police, technical making such up-gradation personal to the holder of the post, namely, Mr. A.P. Mohanty. Thereafter, another post of S.P. Signal in the signal Branch of the State Service was created vide Government letter dated 05.1.1973 (Annexure-11) in the pay scale of Rs. 740-1300 with indication that the post of D.I.G. Signals created by way of up-gradation of earlier post of S.P. Signals will be kept in abeyance with effect from 8.7.1976 after the retirement of Mr. A.P. Mohanty, D.I.G. Again vide Government order dated 1.10.1974 (Annexure-12), another post of S.P. (II) Signals in the scale of Rs.740-1300 was created temporarily with effect from the date, it was actually filled up till 28.02.1975. A.P. Mohanty, D.I.G. Again vide Government order dated 1.10.1974 (Annexure-12), another post of S.P. (II) Signals in the scale of Rs.740-1300 was created temporarily with effect from the date, it was actually filled up till 28.02.1975. It is stated that the 3rd Central of Pay Commission revised the senior scale of pay of IPS to Rs.1200 (6th year or under) - 50-1700 with effect from 01.01.1973. Though the State Government revised the scale of pay of the State Government employees as per recommendation of the 3rd State Pay Commission with effect from 01.01.1974 vide ORSP Rules, 1974, it did not revise the pay scale of post of S.P. Signals. However, by subsequent Resolution No.55448/P dated 04.12.1976 (Annexure-13), the pay scale of both the posts of S.P. Signals was revised from Rs.740-1300 to RS.1200- ('6th year or under') 50-1700, making such revision effective from 01.01.1974. It is submitted that putting the restrictive clause 6th year or under' and thereby keeping the pay for the post of S. P. Signals fixed at Rs.1200 for six years was probably in response to the observation of the Accountant General, Orissa made in his letter under Annexure-9. 5. The petitioner, who initially joined the State Police Service as DSP, Signals was promoted on ad hoc basis to the rank of S.P. and posted as S.P. (II) Signals, on 20.10.1983 vide notification under Annexure-2 and his pay was fixed at Rs.1200- (6th year or under)-50- 1700 as per order under Annexure-17. It is stated that on the basis of recommendation of 4th pay commission, the State Government notified the RSP Rules, 1985 revising the pay of State Government employees as specified in the first schedule of the Rules, but the posts of S.P. Signals were not found in the first schedule, for which the petitioner brought such omission to the notice of the authorities vide his letter dated 11.12.1985 under Annexure-20. The Central Government issued notification dated 13.03.1987 (Annexure-24) amending the Indian Police Service (Pay) Rules, 1954 fixing the senior scale of IPS in two parts: (a) Time scale - Rs.3000 (fifth and sixth year)-100-3500-125-4500; (b) Junior Administrative Grade- Rs.3700-125-4700-150-5000. Such revision was made with effect from 01.01.1986, with proviso for completing four years of service for coming over to the time scale of senior scale and completion of nine years of service in order to come to the Junior Administrative Grade of the senior scale. Such revision was made with effect from 01.01.1986, with proviso for completing four years of service for coming over to the time scale of senior scale and completion of nine years of service in order to come to the Junior Administrative Grade of the senior scale. It is alleged that the petitioner represented on 17.08.1987 (Annexure-26) for fixing his pay at par with the revised central pay scale of IPS, as he was still drawing the pay in 1974 scale. It is alleged that vide letter dated 22.08.1987 under Annexure-27 opposite party no.3 rejected the representation of the petitioner with the observation that S.P., Signal is strictly an officer of the State Government and not an AIS officer and as such he had nothing to claim in the AIS pay scales, without forwarding the representation of the petitioner to the Government though opposite party no.3 was not competent to take a decision on the representation of the petitioner. Vide office memorandum of the Government dated 26.12.1987 (Annexure-33) the pay scale of S.P (II) Signals was revised from Rs.1200-1700 to 2400-3550. It is submitted that the pay for the post of S.P.(II) Signals should have been fixed at par with the senior time scale of IPS Officers, but the fixation of pay scale under Annexure- 33, which was less than the senior time scale of IPS, amounts to reduction/demotion of the status of the post of S. P. Signal. It is stated that till date (till the date of filing of the writ application), the scale of pay of S.P.(I) signals has not been prescribed under the ORSP Rules, 1985, nor any other notification for bringing post of SP (II) and S.P.(I) signals in the first schedule to ORSP Rules,1985 has been issued. It is contended that the opposite parties violated the principle of equal pay for equal work inasmuch as while granting a scale of pay identical to the senior scale of IPS from time of creation of post of S.P. Signal and while all other posts of S.P in the State were also having same scale of pay at par with senior scale of pay of IPS, granting less pay to S.P.(II), Signal is arbitrary, unreasonable and discriminatory and, therefore, unsustainable. 6. 6. The State Government has filed a counter affidavit wherein it is stated that the petitioner, who was directly recruited as D.S.P., Signals in 1978, was promoted to the rank of S.P., Signals and posted as S.P. (II) Signals on ad hoc basis with effect from 23.10.1983 and was confirmed/regularized in the said post on 07.12.1985. Since 27.02.1992 he was posted as S.P. Computer, Bhubaneswar. The post of S.P., Signal and S.P., Computer are technical Class-I posts. In paragraphs-12 and 13 of the counter affidavit, it, has been stated as under: "12. It may be mentioned here that the post of (II) Signals is an ex-cadre post like S.P. Commandant and Dy. Commandant of OSAP Bn. and S.P., P.M. 1. All these posts were given senior time scale (i.e. 1200-1700) in Home Department letter No.5544B/P dated 4.12.1976. The pay 'scale of Commandant, Dy. Commandant and Fire Officer, who were enjoying a scale identified to Senior rime Scale pay of IPS as mentioned above have been relised in 1985 including the pay of S.P.(II), Signals. In the writ petition the petitioner has stated that he was compelled to represent his case to opposite party no. 1 vide his letter dated 17.08.1987 (Annexure-26 to the writ petition) as no scale of pay was prescribed for the post of S.P. Signals. But actually in the said representation he had claimed for fixation of his pay identical to the Sr. Scale of I.P.S. Since the post of S.P. Signals is an ex-cadre post and the petitioner was holding that post and he is not an AIS Officer, he has no claim to the senior time scale of pay provided to IPS Office Accordingly his representation was rejected vide S.P. Headquarters letter No. 7721 /Acts. dated 17.2.88 (Annexure-27) to the writ petition). 13. That in reply to the averments made in paragraph-53, of the writ petition the deponent humbly begs to submit that the status/rank/Grade of Superintendent of Police is always equated with Commandants and not with Deputy Commandants. But the pay scale of Deputy Commandant, Ex-Cadre Superintendent of Police and I.P.S. Cadre Supt. of police in Senior Time Scale are equal." 7. It is further stated that the posts of S.P Signal, Commandant/Deputy Commandant of OSAP, Bn., Fire Officer and S.P., P.M.T. were equal and prior to 1974 their scale of pay was Rs.740-1300 and the said scale was revised to RS.1200-1700 from 01.01.1974. of police in Senior Time Scale are equal." 7. It is further stated that the posts of S.P Signal, Commandant/Deputy Commandant of OSAP, Bn., Fire Officer and S.P., P.M.T. were equal and prior to 1974 their scale of pay was Rs.740-1300 and the said scale was revised to RS.1200-1700 from 01.01.1974. This was a scale allowed by the State Government to Class-I Officers under the State Government and accordingly the scale of pay was revised by the State Government to Rs.2400-3550. It is also stated that although the scale of pay of Rs.1200-1700 was allowed earlier, it was no where admitted or stated that the officers are AIS Officers for all purposes and that they would get their pay as per the rates to be revised by the Central Government from time to time for IPS Officers and would get the other facilities and service benefits like IPS Office. The petitioner being a State Government Officer, he shall be subject to the Rules, Regulations and orders etc. of the State Government and cannot claim' parity with AIS Officers. Therefore, even if at some point of time, the scale of pay of S.P. Signals under the State Service was equal to the senior scale of IPS, the same parity cannot always be maintained as IPS Officers are governed by IPS Pay Rules. It is also stated that the duties and responsibilities of the post of S.P., Signals is purely technical and completely different from the duties and responsibilities of an officer of IPS cadre. 8. Learned State Administrative Tribunal has disposed of the O.A. of the petitioner holding that the petitioner is a State Government Officer and his services are not regulated under AIS cadre/Pay Rules and, therefore, his claim for getting AIS scale of pay (Senior Scale) and promotion to Junior Administrative grade, etc. is not acceptable. 9. Learned counsel for the petitioner submits that since previously the senior time scale of pay of IPS was being granted to S.P. Signals, there is no reason to deny the same benefit to the S.P. Signals while fixing the pay for the said post, vide Government Order under Annexure-33. In this respect, the learned counsel relies on the decision of the Calcutta High Court in the case of Secretary, Department of Finance, Government of West Bengal v. West Bengal Judicial Service Association and others; 1992 (1) All India Services Law Journal-98. In this respect, the learned counsel relies on the decision of the Calcutta High Court in the case of Secretary, Department of Finance, Government of West Bengal v. West Bengal Judicial Service Association and others; 1992 (1) All India Services Law Journal-98. In the cited decision, the Calcutta High Court directed to give benefits to the Officers of West Beng81 Judicial Service, in the form of scales of pay, special pay, junior administrative grade, house-rent allowance and dearness allowance etc. in the same manner as the Indian Administrative Service because of a clear and conscious decision of the Government of the State. This decision, however, will have no application to the facts of the present case, inasmuch as though the scale of pay granted to the S. P. Signals earlier happened to be equal to the senior time scale pay of IPS, there is no decision of the State Government either at the time of creation of post of S. P. Signals or at any time subsequent thereto that the post will carry the senior time scale available to the IPS Office. Therefore, the decision cited by the learned counsel is of no help. 10. Learned counsel also contends, relying on the decisions reported in (1999) 4 SCC 408 ; Alvaro Noronha Ferriera and anr v. Union of India and ors, (2008) 1 SCC 586 ; Union of India v. Dineshan K.K. and 2008 (9) SCALE 557 ; State of Kerala v. B. Renjith Kumar and others that the petitioner is entitled to equal pay with that of IPS Officers on the principle of "equal pay for equal work". 11. Dealing with the question of "equal pay for equal work" in the case of Union of India (supra), the apex Court held as under: "14. In SBI v. Mr. Ganesh Babu a three-Judge Bench of this Court, dealing with the same principle opined that principle of equal pay is dependent upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities do make a difference. Ganesh Babu a three-Judge Bench of this Court, dealing with the same principle opined that principle of equal pay is dependent upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. The functions may be the same but the responsibilities do make a difference. It was held that the judgment of administrative authorities, concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment 0\ the authorities concerned which, if arrived at bona fide, reasonably ard rationally, was not open to interference by the court. 15. In State of Haryana v. Tilak Raj it has been observed that the principle of "equal pay for equal work" is not always easy to apply as there are inherent difficulties in comparing and evaluating the work of different persons in different organisations or even in the same organisation. It has been reiterated that this is a concept which requires for its applicability, complete and wholesale identity between a group of employees claiming identical pay scales and the other group of employees who have already earned such pay scales. It has been emphasized that the problem about equal pay cannot be translated into a mathematical formula." 12. ISP Officers belong to the All India Service Cadre having their separate Recruitment Rules and Pay Rules whereas the post of S.P.Signals hi the State Police Organisation is a State Service. Undeniably the duties and responsibilities of the post of S.P. Signals are purely technical and completely different from the duties and responsibilities of an officer of IPS cadre. Therefore, the claim of the petitioner that on the principle of "equal pay for equal work" he is entitled to the senior pay scale available to the IPS Officers cannot be accepted. 13. However, the fact remains that the status of S. P. Signals is equivalent to the Commandants of Police in the State Service as admitted by the opposite parties in their counter affidavit. The two annual Administrative reports under Annexures-31 and 32 group S.Ps and Commandants in one rank. The opposite parties also do not deny that the number of officers in the rank of SPs/Commandants reflected in Annexures-31 and 32 do not include the post of S.P.Signals. The two annual Administrative reports under Annexures-31 and 32 group S.Ps and Commandants in one rank. The opposite parties also do not deny that the number of officers in the rank of SPs/Commandants reflected in Annexures-31 and 32 do not include the post of S.P.Signals. This goes to show that all along S.P. Signals has been treated to be in the same rank as that of the Commandants. Under the ORSP Rules, 1985 Commandants, who were having identical pre-revised pay scale with that of S.P. Signals, were given a revised pay scale of Rs.2500-3650, whereas the petitioner's pay has been revised to RS.2400-3550 with effect from 01.01.1985. Since both the posts of S.P. Signals and Commandants are admittedly in the same rank and both belonged to the State Service, there is no justification to give lesser pay to the petitioner (S.P. Signal) than the revised pay scale of Commandants. This is totally arbitrary and discriminatory. The petitioner is entitled to the pay scale at par with the pay scale of Commandants with effect from 01.01.1985 and we direct the State Government to pay him accordingly. The arrears of the petitioner shall be calculated and paid to (him within a period of four months from the date of communication (of this order. The writ application is accordingly disposed of.