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2013 DIGILAW 452 (JHR)

Sandhya Sinha v. State of Bihar

2013-04-05

SHREE CHANDRASHEKHAR

body2013
JUDGMENT By Court—Seeking quashing of order contained in Memo No. 119 dated 22.02.2001, the petitioners have approached this Court by filing this writ petition. A further prayer for fixing the proper scale of pay of the petitioners and for grant of all consequential benefits have also been made by the petitioners. 2. The brief facts of the case are that the original petitioner No. 1, Anil Kumar Sinha was initially appointed on 25.08.1978 as Lower Division Assistant on daily wages. On 11.06.1980 he was appointed on the regular post of Lower Division Assistant in the pay scale of Rs 284-372 and by office order dated 13.07.1990, he was granted first time-bound promotion, which was confirmed on 23.10.1999. 3. Since the original petitioner No. 1, Anil Kumar Sinha died on 16.01.2011, an Interlocutory Application No. 1289 of 2013 seeking substitution of legal heirs of the original petitioner No. 1 was filed and the said application has been allowed by order dated 15.03.2013. 4. The petitioner No.2 was appointed as Assistant on 04.05.1985 on daily wages and his service was regularised w.e.f. 04.05.1987 by order dated 22.09.1987. However, the services of petitioner No. 2 and some other employees were terminated and therefore, they approached Hon'ble Patna High Court in C.W.J.C No. 7478 of 1989 challenging the order of termination dated 10.07.1989. The writ petition was allowed on 27.08.1992 and the petitioner No. 2 was reinstated in service. 5. The petitioner No. 3 was appointed as Assistant Field Cashier and he was appointed on a vacant post of Assistant in the pay scale of Rs 580860 by order dated 11.08.1987 which is marked as Annexure-7 to the writ petition. 6. The petitioners moved the High Court in C.W.J.C. No. 3284 of 1997 (R) for a direction upon the respondents for fixing their pay in the appropriate scale of pay on the ground that the benefits under the recommendations of the Pay Revision Committee were not given to the petitioners, though the revised scale of pay of Rs 1500-2750 with effect from 1991 was implemented in respect of the “Assistants” working in other Industrial Area Development Authority such as BIADA, DIADA, RIADA, etc. The Writ Petition was disposed of on 30.08.1999 in the following terms:- “The petitioner will prefer representation along with a copy of this order before the Chairman, Bureau Enterprise (Finance Department) Govt. The Writ Petition was disposed of on 30.08.1999 in the following terms:- “The petitioner will prefer representation along with a copy of this order before the Chairman, Bureau Enterprise (Finance Department) Govt. of Bihar who in his turn will communicate the Govt. decision relating to revise scale of pay to the Chairman, BIADA within a period of three months from the date of receipt of such representation. The authorities of BIADA, thereafter provide the petitioner with benefits, if any, in such revised scale of pay as may be communicated by Bureau of Public Enterprises, within two months thereof. I may state that if the “Assistants” of BIADA are performing same duty, having same qualification, as that of Assistant of others Industrial Area Development Authority, the respondents cannot discriminate the “Assistants” post in the BIADA, in the matter of grant of such revised scale of pay. This writ petition stands disposed of with the aforesaid observation and direction.” 7. Feeling aggrieved by the direction contained in order dated 30.08.1999, the respondent-Bokaro Industrial Area Development Authority, moved the High Court in Civil Review No. 59 of 1999 (R), which was disposed of by order dated 02.02.2000 with a clarification that: “If the Chairman, Bureau of Public Enterprises finds that Assistants of BIADA are not performing same duty or are less qualified, they may not be granted the same scale of pay as is being given to the Assistants of other Industrial Area Development Authority”. 8. In the light of orders passed in the Writ Petition and Civil Review Petition, the respondent-Authority considered the case of petitioners and passed order dated 22.02.2001 which has been impugned by the petitioners in the present proceeding. A counter-affidavit has been filed by the respondent Nos. 7–9 in which a plea has been raised that the petitioners were appointed without following the prescribed procedure for appointment on the post of Assistants. Regarding pay scale of the petitioners, respondents have taken a stand in paragraph No. 7 of the counter-affidavit, which is extracted below : 7. A counter-affidavit has been filed by the respondent Nos. 7–9 in which a plea has been raised that the petitioners were appointed without following the prescribed procedure for appointment on the post of Assistants. Regarding pay scale of the petitioners, respondents have taken a stand in paragraph No. 7 of the counter-affidavit, which is extracted below : 7. “That the defendant No. 3 mentioned the decision taken in the meeting of 5th Pay Revision Committee cum Fitment Committee under the chairmanship of Chairman, Bureau of Public Enterprises in its meeting held on 21/9/1990 in which Commissioner & Secretary, Finance Department, Industrial Development Commissioner, Department of Industries, Managing Director BIADA, participated as Members and thereafter the pay scales of the working personnel on the post of Assistants in BIADA was revised in the pay scale of Rs 1200-1800/-from the approved pay scale of Rs 580860/-. The defendant No. 3 thus concluded in the concerned Memo No. 119 dated 22/2/2001 that no discrepancy was made with regards to the pay scales of the petitioners working in BIADA.” 9. Heard learned counsel appearing for the parties at length and 10. The learned counsel for the petitioners has contended that inspite of perused the documents on record specific direction of Hon'ble High Court, pay scale of the petitioners has not been fixed by the Authority. He has further submitted that all the three petitioners have been given regular promotion and therefore the plea raised by the respondents that the petitioners were appointed on the post of Assistants without following the procedure, is untenable and without any basis. On the other hand, learned counsel for the respondents has contended that the petitioners have been granted appropriate scale of pay. He has further contended that the initial qualification of the petitioners when they were appointed on daily wages is not equivalent to the qualification for the post of Assistants working under other Authorities. The learned counsel for the respondents has relied on decisions in “Government of W.B. Versus Tarun K. Roy and Others”, reported in (2004) 1 SCC 347 ; “Secretary, Finance Department and Others Versus West Bengal Registration Service Association and Others”, reported in (1993) Supp. The learned counsel for the respondents has relied on decisions in “Government of W.B. Versus Tarun K. Roy and Others”, reported in (2004) 1 SCC 347 ; “Secretary, Finance Department and Others Versus West Bengal Registration Service Association and Others”, reported in (1993) Supp. 1 SCC 153; “State Bank of India and Another Versus M.R. Ganesh Babu and Others”, reported in (2002) 4 SCC 556 ; “State of Haryana and Another Versus Haryana Civil Secretariat Personal Staff Association” reported in (2002) 6 SCC 72 ; “State of Haryana and Others Versus Charanjit Singh and Others”, reported in (2006) 9 SCC 321 ; “S.C. Chandra and Others Versus State of Jharkhand and Others”, reported in (2007) AIR SCW 5480, “State of Punjab and Others Versus Surinder Singh and Another”, reported in (2007) AIR SCW 7713, “Union of India Versus Dineshan K.K.”, reported in (2008) AIR SCW 591, “Union of India & Ors. Versus Hiranmoy Sen & Ors.”, reported in (2007) AIR SCW 7025 for substantiating his plea that the petitioners are not discharging the same functions as the Assistants of other Industrial Authorities and they are not entitled for equal pay. 11. In “Secretary, Finance Department and Others versus West Bengal Registration Service Association and Others”, reported in (1993) Supp (1) SCC 153, the Hon'ble Supreme Court refused to interfere in a matter where claim of the employee was rejected by the Government on the ground that duties and responsibilities of the two posts were different and held that Court's interference with the complex matter involving job evaluation, equation of posts, salaries, etc. is not ordinarily called for unless there is unjust treatment by arbitrary State action or inaction. In the present case inspite of the specific direction by this Court, no findings has been recorded that the duties performed by the petitioners are not similar to the duties performed by 'Assistants' working under other Authorities. 12. In “State Bank of India and Another Versus M.R. Ganesh Babu and Others”, reported in (2002) 4 SCC 556 , the Hon'ble Supreme Court held that the applicability of the principle of 'equal pay for equal work' depends upon nature of the work and not merely on the volume of work. In the present case as noticed above the issue involved, is different. 13. In the present case as noticed above the issue involved, is different. 13. In “State of Haryana and Another Versus Haryana Civil Secretariat Personal Staff Association”, reported in (2002) 6 SCC 72 , the Hon'ble Supreme Court has held that the claim for 'equal pay for equal work' is not a fundamental right of the employee, although it is a Constitutional goal and parity cannot be claimed merely on the ground of designation being the same. In the impugned order dated 22.02.2001, it has not been stated that the petitioners though designated as 'Assistants' are not performing the duties which are being performed by Assistants working under other Authorities. 14. I find that the decisions relied upon by the counsel for the petitioners do not help the respondents for the reasons that in the present case though the Chairman, Bureau of Public Enterprises was specifically directed to decide the claim of the petitioners on the basis of nature of duties performed by them and the qualification of the petitioners vis-a-vis the 'Assistants' working under other Authorities, however, nowhere in the impugned order dated 22.02.2001 it has been stated that the petitioners are not holding identical qualification or that they are not performing duties similar to the 'Assistants' working under other Authorities. 15. From perusal of the documents on records, it appears that the plea that the petitioners were not appointed on the post of Assistants by following the prescribed procedure, has been raised for the first time in this proceeding. In the earlier proceedings of C.W.J.C. No. 3284 of 1997 (R) and Civil Review No. 59 of 1999 (R) or even in the proceeding of C.W.J.C. No. 7478 of 1989, such a plea was not raised on behalf of the respondents. Moreover, the appointment of the respondent No. 2 on the post of Assistant has been confirmed by the High Court in C.W.J.C. No. 7478 of 1989. The respondent-Bokaro Industrial Area Development Authority had challenged the order dated 27.08.1992 passed in C.W.J.C. No. 7478 of 1989 before the Hon'ble Supreme Court and Special Leave Petition was withdrawn with a liberty to move the High Court for filing Review Petition. The Review Petition filed before Patna High Court was also withdrawn on 11.01.1994 and a warning was issued to the Managing Director of the Authority. The Review Petition filed before Patna High Court was also withdrawn on 11.01.1994 and a warning was issued to the Managing Director of the Authority. The relevant extract of order dated 11.01.1994 passed in Review Petition is extracted below: “After some arguments, the learned counsel for the petitioners sought permission to withdraw this application because no ground of review has been made out. The Supreme Court was incorrectly informed that wrong statement of facts have been narrated by this Court. On thorough scrutiny, nothing of the kind could be pointed out. I would have taken a serious view in the matter and proceeded to take action against the Managing Director and/of officer who made such irresponsible statement in the Supreme Court but for the fact that Mr. Ram Balak Mahto persuaded me not to proceed any further. I refrained. The then Managing Director is warned to be more careful in future. This application is dismissed as withdrawn on the condition that a cost of Rs 1000 (one thousand) only shall be paid to the opposite party by the then Managing Director, Shri Muni Lall, who is now posted as Additional Secretary, Planning Department, Old Secretariat, Patna, out of his own pocket within four weeks from the receipt of this order with a receipt in proof of such payment furnished to this Court.” 16. It is also clear that the order passed in C.W.J.C. No. 3284 of 1997 (R) and Civil Review No. 59 of 1999 (R) have remained unchallenged. It is thus clear that the Chairman, Bureau of Public Enterprises was required to examine the case of petitioner only to find out whether the petitioners are performing the similar duties and possessed the same qualification as the 'Assistants' of other Industrial Authorities such as BIADA, DIADA, RIADA etc. From the impugned order dated 22.02.2001 it does not appear that the Chairman, Bureau of Public Enterprises has found that the petitioners are not performing duties similar to the Assistants of other Authority and that they do not possesses similar qualifications also. It has been simply recorded in order dated 22.02.2001 that no discrimination has been made to the petitioners in fixing the approved pay scale of Assistants. The petitioners have raised the specific plea that their pay-scale has not been fixed in appropriate pay-scale and they have not been given the benefits under the Pay Revision Committee. It has been simply recorded in order dated 22.02.2001 that no discrimination has been made to the petitioners in fixing the approved pay scale of Assistants. The petitioners have raised the specific plea that their pay-scale has not been fixed in appropriate pay-scale and they have not been given the benefits under the Pay Revision Committee. The plea raised by the learned counsel for the respondents during the course of hearing that the petitioners are not performing similar functions as performed by the Assistants of other Authorities, cannot be accepted because such a plea has neither been taken in counter-affidavit nor in the impugned order dated 22.02.2001. The judgments relied upon by the learned counsel for the respondents are also not relevant in the facts of the present case. There is nothing on record to support impugned order dated 22.02.2001. In fact, the impugned order dated 22.02.2001 suffers from non-application of mind and it has been passed in a mechanical manner. The direction of the High Court passed in earlier proceedings has not been complied with. For the aforesaid reasons, the writ petition deserves to be allowed and therefore, impugned order dated 22.02.2001 is hereby quashed.