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2016 DIGILAW 1104 (GAU)

H. Lalthanzuala v. State of Mizoram

2016-12-09

MICHAEL ZOTHANKHUMA, NELSON SAILO

body2016
JUDGMENT AND ORDER : Nelson Sailo, J. 1. Heard Mr. A.R. Malhotra, learned counsel appearing for writ appellant as well as Mr. Samuel Vanlalhriata Chhangte, learned Govt. Advocate appearing for State respondents. 2. This is a writ appeal directed against Order dated 17.6.2014 passed by learned Single Judge in WP (C) No. 107/2011. The facts of case in brief is that:- 3. Appellant was appointed as Computer Operator on officiating basis in pay scale of Rs. 1640-2900 per month for a period of six months subject to regularization through DPC vide Order dated 3.7.1997. Thereafter, vide Order dated 27.5.1998, appellant was again appointed as work charge Computer Operator in same pay scale. 4. While serving in such capacity, he was getting a pay scale of Rs. 5500-175-9000/- per month in revised scale but however, vide Order dated 20.3.2004, his pay was down graded to Rs. 4000-100-6000/- per month with effect from 1.4.2004. Being aggrieved, he submitted a representation to t he respondent No. 4 on 21.3.2004, contending inter-alia, that he has been serving for about 10 years as Computer Operator and enjoying pay scale of Rs. 5500-175-9000/- per month and he having all requisite qualification for post of Computer Operator, his pay scale could not have been reduced to Rs. 4000-100-6000/- per month. 5. Having received no response on his representation, he again submitted his representation to respondent No. 1 on 26.5.2008 and same also not having been considered, he filed WP (C) No. 14/2011 before this Court, said writ petition was then disposed of vide Judgment and Order dated 28.2.2011, whereby respondents were directed to dispose of two representations dated 21.3.2004 and 26.5.2008 submitted by appellant within a period of three months from date of receipt of Judgment and Order. 6. Consequently, two representations dated 21.3.2004 and 26.5.2008 were disposed of by respondent authority on 15.4.2011, wherein it was provided that appellant was appointed as officiating Computer Operator for a period of six months and thereafter, he was appointed as work charge Computer Operator. Therefore, he could not have any claim against his officiating appointment and pay scale that was given to him. At same time, subsequent to his appointment on work charge, there were other work charge Computer Operators appointed in a lower pay scale and his appointment to post of Computer Operator on work charge basis, giving him higher pay scale of Rs. At same time, subsequent to his appointment on work charge, there were other work charge Computer Operators appointed in a lower pay scale and his appointment to post of Computer Operator on work charge basis, giving him higher pay scale of Rs. 5500-170-9000/- per month was without any basis. As there was disparity in pay amongst various work charge Computer Operators, a decision was taken by DPC held on 27.2.2004 that pay scale of all work charge Computer Operators should be fixed at Rs. 4000-6000/- per month and resultantly, his pay scale was fixed in revised scale. 7. Appellant still being aggrieved, approached this Court by filing WP (C) No. 107/2011 challenging reduction of his pay scale, and also in favourable disposal of his representation. writ petition was finally heard by learned Civil Judge on 17.6.2014 and same was dismissed. 8. Learned Single Judge while disposing of WP (C) No. 107/2011 vide Order dated 17.6.2014 dwelt upon counter affidavit filed by respondents against said writ petition. respondents at Paragraphed-6 of the counter affidavit had contended that petitioner's appointment as work charge Computer Operator was not against any regular post and was also without following any recruitment rules for regular appointment. Further, Mizoram Computer Technology Services Recruitment Rules, 1989 was not applicable to case of petitioner. That in reply affidavit filed by petitioner, above stand of State respondents was not denied by him. only plea of petitioner was that since he was appointed in a certain time scale of pay, i.e. Rs. 1640-2900/- (Pre-revised)/Rs. 5500-9000/- (revised), his pay could not have been down graded to Rs. 4000-6000/- per month. State respondents having regard to discrepancy in pay scale of work charge Computer Operators working under P WD, constituted DPC on 27.2.2007 took a decision to fix pay scale for all work charge Computer Operator under PWD in pay scale of Rs. 4000-6000/- w.e.f. 1.4.2007. 9. That since such decision involved expertise of an expert body, a writ Court while exercising its extra ordinary jurisdiction should not sit in appeal over such decision. Further more, notification dated 22.8.2008 issued pursuant to decision taken by Council of Ministers in their meeting held on 13.5.2008 adopted CPWD Manual Volume-III, 2002 with certain modifications for department of Public Works, Power & Electricity and Public Health Engineering w.e.f. 1.6.2008. According to said notification, pay attached to work charge Computer Operator was Rs. Further more, notification dated 22.8.2008 issued pursuant to decision taken by Council of Ministers in their meeting held on 13.5.2008 adopted CPWD Manual Volume-III, 2002 with certain modifications for department of Public Works, Power & Electricity and Public Health Engineering w.e.f. 1.6.2008. According to said notification, pay attached to work charge Computer Operator was Rs. 4500-7000/- and petitioner admittedly was enjoying said scale of pay of Rs. 4500-7000/- per month. writ petition was thus dismissed. 10. It is specific case of appellant herein that decision taken by DPC which held its meeting on 27.2.2007, with regard to pay of work charge Computer Operator is illegal, unreasonable and arbitrary, inasmuch as, no reason for taking such decision was assigned. Further, prior to taking such decision by said DPC, appellant was not even afforded an opportunity to be heard. 11. Mr. A.R. Malhotra, learned counsel appearing for writ appellant substantiating grounds taken in writ appeal has drawn attention of this Court to provisions contained in para 1.04 of CPWD Manual Volume-III for work charge establishment wherein, work charge employees are considered to be Civil Servants and that FRs and SRs are also applicable to them. Therefore, keeping in mind provisions contained in Article 311 of Constitution of India, he submits that condition of services of appellant including pay could not have been varied without following due process of law. 12. Mr. A.R. Malhotra, learned counsel for appellant, to impress upon Court that respondent authorities have been bias and arbitrary has relied upon decision rendered by Apex Court in case of Bhagwan Shukla vs. Union of India and Others, (1994) 6 SCC 154 , as well as decision rendered by this Court in Vankhuma vs. State of Mizoram and Others, 2004 (2) GLT 571. Supporting ratio laid down in these judgments he submits that down gradation of pay of appellant being without a pre-decisional hearing, same is unsustainable. 13. Mr. Samuel Vanlalhriata Chhangte, learned Govt. Advocate, Mizoram on other hand submits that appellant, since his initial appointment as work charge Computer Operator had been given a pay scale however without any basis and therefore, appellant cannot be said to have a legitimate grievances. DPC which held its meeting on 27.2.2007, upon considering case of all work charge Computer Operators working under P WD took a decision to place all such employees in an uniform pay scale of Rs. DPC which held its meeting on 27.2.2007, upon considering case of all work charge Computer Operators working under P WD took a decision to place all such employees in an uniform pay scale of Rs. 4000-6000/- per month and therefore, no mala-fide action can be attributed to DPC. That there was also no complaints from any other work charge employees besides appellant. That, while other work charge Computer Operators were being paid pay scale of Rs. 4000-6000/- per month, there was no reason as to why appellant could be allowed to have a higher pay scale. Thus, decision of DPC being based on sound principles of equal pay for equal work after objective assessment could not be faulted with. In order to substantiate his argument, learned Govt. Advocate relies upon decision rendered by Hon'ble Apex Court in case of State of Haryana and Another vs. Haryana Civil Secretariat Personal Staff Association, 2002 (6) SCC 72 wherein it was held that scope of judicial review in administrative decisions pertaining to pay fixation and pay parity was limited on test of irrationality, unjust and prejudicial actions, learned Govt. Advocate therefore prays that writ appeal being without any merit, same should be dismissed. 14. We have considered contentions and submissions put forth by rival parties. At outset, it may be noticed that appointment of appellant was initially for a period of 6 (six) months as officiating Computer Operator and thereafter, on expiry of term, he was appointed as work charge Computer Operator vide Order dated 27.5.1998. A bare perusal of appointment order and rival pleadings would reveal that his appointment was neither against any substantive vacancy nor against a sanctioned post and importantly, such appointment was not rooted through a selection process. Departmental Authorities upon considering fact that there was disparity in pay scale attached to work charge Computer Operator constituted DPC on 27.2.2004 and said DPC upon examination and consideration of prevailing situation took a decision that all work charge Computer Operators, w.e.f. 1.4.2007 should draw a similar pay scale @ Rs. 4000-100-6000/- per month. said decision of DPC would go to show that such consideration was in respect of all work charge Computer Operators under PWD and not just single case of appellant. 15. 4000-100-6000/- per month. said decision of DPC would go to show that such consideration was in respect of all work charge Computer Operators under PWD and not just single case of appellant. 15. Next question raised by appellant is that he was not given an opportunity of being heard prior to taking of such decision and therefore, same was against principles of natural justice as well as constitutional scheme as contained under Article 311 of Constitution of India. In this connection, it may be noticed that this Court vide Judgment and Order dated 28.2.2011 in WP (C) No. 14/2011, had directed respondents to consider representations dated 21.3.2007 and 26.5.2008 filed by appellant to be disposed of within a specified time framed and pursuant to such direction, representations of appellant was considered and disposed of on 15.4.2011 informing appellant that down gradation of pay scale was necessitated in view of fact that there was disparity of pay amongst work charge Computer Operators working under PWD. Therefore, DPC constituted for purpose on 27.2.2007 decided that work charge Computer Operator of Department w.e.f. 1.4.2004 would be given pay scale of Rs. 4000-6000/- per month. Therefore, on disposal of representations filed by appellant before authorities, appellant at this juncture cannot take a plea that opportunity of hearing was not given to him. 16. Considering appointment of appellant was contrary to Constitutional scheme and also without there being any indication that such appointment was made against a sanctioned post, appellant cannot, as a matter of right insist on getting pay scale which was accorded in his initial appointment. 17. As observed by learned Single Judge in impugned Order dated 17.6.14, that since DPC that was constituted on 27.2.2004 comprising of various officials of Department, which could only be best body to take a decision on pay scale to be given to work charge Computer Operators, we are constraint from taking a different view. It is a settled proposition of law that Courts normally would not interfere in policy making domain of Government unless same is perverse, arbitrary, irrational and without any basis. In instant case, we do not find that decision of respondent authorities in addressing disparity of pay scale amongst work charge Computer Operators suffers from any infirmity. That being reason, we do not find that Order dated 17.6.2014 passed by learned Single Judge in WP (C) No. 107/2011 calls for any interference. 18. In instant case, we do not find that decision of respondent authorities in addressing disparity of pay scale amongst work charge Computer Operators suffers from any infirmity. That being reason, we do not find that Order dated 17.6.2014 passed by learned Single Judge in WP (C) No. 107/2011 calls for any interference. 18. In result, writ appeal stands dismissed while leaving parties to bear their own cost.