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2016 DIGILAW 613 (CAL)

Runa Ghosh v. State of West Bengal

2016-08-04

DIPANKAR DATTA

body2016
JUDGMENT : 1. This is the third round of litigation between the same parties involving a claim of the petitioner for entitlement to scale no.10 (pre-revised). 2. The petitioner is a library assistant of the West Bengal Legislative Assembly Secretariat. Way back in 1992, she was appointed as a cataloguer. Having completed 8 (eight) years of continuous and satisfactory service as cataloguer without getting any promotion or elevation to the next higher scale of pay, she was allowed to move from the scale of pay of Rs. 3350 – 6325/- to the next higher scale of pay of Rs. 3600 – 7050/- with effect from January 1, 2001 by an order dated May 28, 2001. 3. It was based upon a decision taken by the Hon’ble Speaker of the Legislative Assembly on November 21, 2007 that the post of cataloguer was renamed as library assistant. Since the petitioner had to her credit a certificate in Library Science she was fitted in scale no.6 (Rs. 3350 – 6325/-), but had she possessed a degree, she would have been entitled to scale no.10 (Rs.4,500 – 8,700/-). Upon acquiring a degree in Library and Information Science from the Netaji Subhas Open University, a recognized university, the petitioner made an application on February 22, 2012 for scale no.10 as per memorandum bearing no.1976 LA/Estab. dated November 21, 2007 (to be referred at a later part of this judgment). The Finance Department of the Government by order dated September 14, 2012, rejected the prayer of the petitioner on the basis of a recruitment rule published under order dated June 8, 2009. Having come to learn of such order of rejection, the petitioner made a representation dated November 2, 2012 before the Secretary of the Legislative Assembly (the 5th respondent) renewing her prayer for scale no.10 instead and in place of scale no.6. This was followed by a further representation dated January 30, 2013. Since the aforesaid representations did not bear fruit, the petitioner moved a writ petition assailing the order of rejection of her claim. A coordinate Bench by order dated July 17, 2014 disposed of the writ petition by directing, inter alia, as follows: “Heard learned advocates for the petitioner. This was followed by a further representation dated January 30, 2013. Since the aforesaid representations did not bear fruit, the petitioner moved a writ petition assailing the order of rejection of her claim. A coordinate Bench by order dated July 17, 2014 disposed of the writ petition by directing, inter alia, as follows: “Heard learned advocates for the petitioner. Since the petitioner is stated to be a Library Assistant and the method of recruitment to the post of Assistant Librarian is by way of promotion from the post of Library Assistant, the impugned order under challenge cannot be sustained and is, thus, set aside and quashed. Accordingly, the Finance (Audit) Department, Group–P (Service), Government of West Bengal, the respondent no. 3, is directed to consider the matter afresh in terms of the Gazette Notification dated 8th June, 2009 and shall dispose of the same by passing a reasoned order in accordance with law, to be communicated to the petitioner, within eight weeks from the date of presentation of a copy of the certified copy of this order.***” 4. Acting in compliance with the order dated July 17, 2014, the Principal Secretary, Finance Department, Government of West Bengal considered the petitioner’s claim once again and by an order contained in memo dated November 25, 2014 maintained the earlier order of the department of rejection of her claim. The order of the principal secretary, inter alia, reads as follows: “***Moreover, Smt. Runa Ghosh (Dey Bhowmic) acquired a Degree in Library Science subsequently from Netaji Subhas Open University on 26.03.2012. The West Bengal Legislative Assembly Secretariat could not show any order that a incumbment (sic an incumbent) can claim higher scale on acquiring degree subsequently. Needless to point out that no such provision is there in the recruitment rules. Thus, in no way Smt. Ghosh, Library Assistant can be considered under the recruitment rules framed on 08.06.2009. On such framing up of recruitment rules earlier orders in this respect has no operation which has been clearly mentioned in rule 4 of the rules regulating the recruitment to various technical posts in the West Bengal Legislative Assembly Secretariat for the West Bengal Legislature Library. Considering the entire above, I find no scope to allow her pre-revised scale no. 10 as claimed and also to consider her case for promotion under the said rules. Considering the entire above, I find no scope to allow her pre-revised scale no. 10 as claimed and also to consider her case for promotion under the said rules. However, if the authority in West Bengal Legislative Assembly Secretariat thinks so to protect the interests of earlier appointed persons which are absent in the recruitment rules, they may take steps for amendment of the said rules following due procedure. Let copy of this be given to the petitioner as well as to the Secretary, West Bengal Legislative Assembly Secretariat.” 5. The order dated November 25, 2014 was subjected to challenge by the petitioner in the second round of litigation. Another coordinate Bench, while disposing of the writ petition by its order dated February 25, 2015 observed, inter alia, as follows: ‘***It appears that the petitioner complained of the rejection of the rejection of the petitioner’s similar prayer in WP 11467(W) of 2013. Such previous petition was disposed of by an order of July 17, 2014 which specifically directed the finance department “to consider the matter afresh in terms of the Gazette Notification dated 8th June, 2009…”. The notification of June 8, 2009 issued by the West Bengal Legislative Assembly Secretariat pertains to the recruitment in various technical posts in the Assembly but does not cover the pay scales and emoluments to which the employees would be entitled. It appears that the petitioner’s prayer was for the petitioner’s pay to be upgraded to scale 10 on the basis of the petitioner having apparently obtained a degree in library sciences. In such circumstances, the notification of June 8, 2009 may not have been relevant. Since it appears that the Principal Secretary considered the matter on the basis of the notification of June 8, 2009 as was directed by this Court, but the relevant notification did not cover any matter pertaining to the pay scales that would be applicable to the various posts covered by the notification, the Principal Secretary could not refer to the memorandum of November 21, 2007 issued by the Assembly Secretariat. WP 5124(W) of 2015 is disposed of by directing the Secretary of the West Bengal Legislative Assembly to consider the petitioner’s claim of being entitled to scale 10 pay in accordance with the rules of the Secretariat and the rules of the State Government, if they are applicable. WP 5124(W) of 2015 is disposed of by directing the Secretary of the West Bengal Legislative Assembly to consider the petitioner’s claim of being entitled to scale 10 pay in accordance with the rules of the Secretariat and the rules of the State Government, if they are applicable. The Secretary should communicate a reasoned decision to the petitioner after affording the petitioner a hearing within eight weeks of the date of receipt of a copy of this order. The Secretary will be entitled to proceed uninfluenced by the order passed by the Principal Secretary in the department of finance on November 25, 2014. If the Secretary finds that the petitioner is entitled to the relief claimed, an appropriate recommendation should be made by the Secretary in accordance with law upon obtaining the approval of the Finance Department, if necessary, for such purpose.’ 6. The 5th respondent reconsidered the petitioner’s claim in compliance with the above order and by an order dated May 6, 2015 once again rejected the claim by holding, inter alia, as follows: “Smt. Runa Ghosh acquired a degree in Library Science in the year 2012 and she is claiming unrevised Scale No. 10 as she has acquired a degree. At the time of hearing she did not produce any government order or any order issued by this Secretariat to show that after acquiring a degree one may be entitled to get a higher scale of pay. When the post of Cataloguer was converted as Library Assistant two separate pay scales were provided for those having a degree in Library Science and those having certificate in Library Science and the pay of the petitioner was also fixed accordingly. She did not dispute about the said order. There was no provision in the said Memorandum No. 1976 LA/Estab. dated Kolkata the 21st November, 2007 that in case degree in Library Science is acquired by an incumbent holding certificate in Library Science then his/her case may be considered for Scale No. 10. In the Recruitment Rule for the post of Library Assistant there is also no provision for promotion or for awarding Scale No. 10 to one who has acquired a degree in Library Science subsequent to her appointment in Scale No. 6. In the Recruitment Rule for the post of Library Assistant there is also no provision for promotion or for awarding Scale No. 10 to one who has acquired a degree in Library Science subsequent to her appointment in Scale No. 6. The only method for recruitment to the post of Library Assistant in Scale No. 10 being through Public Service Commission, there is no scope to allow the petitioner Scale No. 10 though she has now acquired a degree in Library Science. Therefore, I am inclined to hold that Smt. Runa Ghosh is not entitled to get Scale NO. 10 as prayed for by her.” 7. Mr. Chatterjee, learned advocate for the petitioner and Mr. Mukherjee, learned Additional Government Pleader for the 1st to the 3rd respondents have been heard. None has appeared for the 4th to the 6th respondents to support the impugned order. 8. The only issue that emerges for a decision here is whether the 5th respondent was justified in refusing to accede to the claim of the petitioner or not. 9. Clause 3 of the memorandum dated November 21, 2007 issued by the 5th respondent, by which the post of cataloguer was renamed as library assistant, reads as follows: “(3) The existing scale of pay of Rs. 3350-00-3800-100-4700-125-6325/-(scale no. 6) for the post of Library Assistant shall be revised as follows:- (a) for the incumbents having a degree in Library Science – Rs.4500-150-5250-175-7000 -200-5000-225-8700 (Scale No.10); (b) for the incumbent having a certificate in Library Science – Rs.3350-90-3800-100-4700 -125-6325/- (Scale No.6);” 10. Prior to November 21, 2007, there was no classification in the scale of pay of a degree-holder cataloguer and a certificate-holder cataloguer. From the factual narrative, it is revealed that the petitioner having possessed a certificate in Library Science, she had been re-designated library assistant and allowed scale no.6. That was the obvious result of giving effect to the said memorandum. It is axiomatic that had the petitioner possessed a degree in Library Science on November 21, 2007, she would have been entitled to scale no.10. In the impugned order the 5th respondent has held, while holding the petitioner not entitled to scale no.10, that there is no provision in the memorandum dated November 21, 2007 to the effect that an incumbent holding a certificate in Library Science on acquiring a degree in the same subject may be considered for scale no.10. In the impugned order the 5th respondent has held, while holding the petitioner not entitled to scale no.10, that there is no provision in the memorandum dated November 21, 2007 to the effect that an incumbent holding a certificate in Library Science on acquiring a degree in the same subject may be considered for scale no.10. A library assistant possessing degree in Library Science on November 21, 2007 would be entitled to scale no.10 but the petitioner, who has subsequently acquired a degree in Library Science, would not be entitled to scale no.10, is the crux of the impugned order of the 5th respondent. Has the 5th respondent acted bona fide, reasonably and rationally? 11. To the mind of this Bench, the 5th respondent has proceeded on a misconception. The said memorandum although does not provide which scale a certificate-holder library assistant would be entitled to on acquiring a degree, it does not also say that a certificate-holder library assistant acquiring a degree in Library Science subsequent to November 21, 2007 would not be entitled to scale no.10. By asking for scale no.10, the petitioner asserted her right which became available to her consequent upon acquiring a higher qualification (a degree in this case). 12. Although the claim of the petitioner does not pertain to application of the principle of ‘equal pay for equal work’, it would be profitable at this stage to note two decisions of the Supreme Court on the application of the doctrine ‘equal pay for equal work’ for guidance. 13. In State Bank of India v. M.R. Ganesh Babu, reported in (2002) 4 SCC 556 , the Supreme Court had the occasion to consider when the principle of ‘equal pay for equal work’ is attracted and succinctly laid down when a court may interfere, in the following words: “16. The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallised and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend 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. Functions may be the same but the responsibilities make a difference. It is well settled that equal pay must depend 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. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. 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 of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the court.” 14. The other decision is State of W.B. v. West Bengal Minimum Wages Inspectors Association, reported in (2010) 5 SCC 225 , wherein it was observed to the same effect as follows: “18. The principles relating to granting higher scale of pay on the basis of equal pay for equal work are well settled. The evaluation of duties and responsibilities of different posts and determination of the pay scales applicable to such posts and determination of parity in duties and responsibilities are complex executive functions, to be carried out by expert bodies. Granting parity in pay scale depends upon comparative job evaluation and equation of posts. 19. The principle ‘equal pay for equal work’ is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. 19. The principle ‘equal pay for equal work’ is not a fundamental right but a constitutional goal. It is dependent on various factors such as educational qualifications, nature of the jobs, duties to be performed, responsibilities to be discharged, experience, method of recruitment, etc. Comparison merely based on designation of posts is misconceived. Courts should approach such matters with restraint and interfere only if they are satisfied that the decision of the Government is patently irrational, unjust and prejudicial to any particular section of employees.” 15. There is divergence of judicial opinion as to whether ‘equal pay for equal work’ is a fundamental right or not. However, it cannot be gainsaid that ‘equal pay for equal work’ is a facet of ‘equal treatment’ which is the bedrock of Article 14 of the Constitution. 16. Be that as it may, turning to the controversy at hand, it is observed that a classification in the scales of pay of appointees on the post of library assistant who are degree-holders and certificate-holders having surfaced w.e.f. November 21, 2007, a certificate-holder library assistant could not have asked for a scale of pay at par with a degree-holder library assistant. As has been observed in the aforesaid decisions, difference in educational attainments is a valid ground for different scales of pay being fixed for incumbents holding same posts and discharging same nature of duties. So long the petitioner was a certificate-holder library assistant, she was not entitled in law to claim scale no.10 and in fact never did so. The claim was raised by her on acquiring the degree, since a degree-holder library assistant was entitled to scale no.10. 17. The petitioner’s claim for scale no.10, in course of discharging her duty as a degree-holder library assistant, could not have been spurned on the ground assigned in the impugned order. Had it been a claim for ‘equal pay for equal work’ and it could be shown by the 5th respondent that the procedure for recruiting the petitioner was different from the procedure by which other degree-holder library assistants were recruited or the nature of work performed by her or her responsibilities are radically different from the nature of work performed by a degree-holder library assistant or that the yardstick for measuring experience tilts the balance against her, the situation could have been otherwise. In other words, the disparity in pay could be justified by demonstrating that the differentiation satisfies the test of classification under Article 14. However, no classification within a class is permissible without a rational basis. Even on the basis of memorandum dated November 21, 2007, no classification, much less valid classification, within the class of degree-holder library assistants is discernible. 18. Article 14 does not countenance invidious distinction. Unless justified by valid reasons, a library assistant like the petitioner who has improved her educational attainments cannot be deprived of scale no.10. Application of the doctrine of ‘equal pay for equal work’ requires an element of value judgment which ought to be arrived at by the employer bona fide as well as reasonably on an intelligible criterion having a rational nexus with the object of differentiation, whenever such employer is faced with a complaint of his employee of discrimination arising out of denial of ‘equal pay for equal work’. However, entitlement to a higher scale on acquiring higher educational attainment may not require any value judgment. The process of entitlement is automatic, unless prohibited or unless shown to the contrary. 19. Regrettably, the impugned order does not reveal application of mind by the 5th respondent. The recruitment rule introduced in 2009 was inaptly referred to in the impugned order, having no significance for the purpose of considering the petitioner’s entitlement to scale no.10 in view of the subsequent decision of the coordinate Bench dated February 25, 2015. A wrong test was applied by the 5th respondent for answering the problem that was under consideration by him. The 5th respondent ought to have realized that it is not always possible for the executive to visualize the problems that would arise in future and that precisely seems to be the reason why the memorandum dated November 21, 2007 only proceeded to identify the scales of pay that the degree-holder and certificate-holder library assistants would be entitled, without specifying the entitlement of a certificate-holder library assistant should he improve his qualification and acquire a degree in Library Science. The exercise for ascertaining whether the claim for entitlement to scale no.10 is justified or not had to be undertaken not by simply referring to Government orders having no relevance or by taking shelter under absence of any Government order. The exercise for ascertaining whether the claim for entitlement to scale no.10 is justified or not had to be undertaken not by simply referring to Government orders having no relevance or by taking shelter under absence of any Government order. The inability of the petitioner to produce any Government order or any order issued by the Legislative Assembly Secretariat to show that after acquiring a degree one may be entitled to a higher scale of pay, cited as a reason for rejecting her claim, is tantamount to putting the cart before the horse. It was for the 5th respondent to move the Government for issuance of an order protecting the petitioner from inequality. Article 14 guarantees equality before law and equal treatment of the laws. To deny appropriate pay despite all other things being equal, would amount to invidious discrimination and difficult, if not impossible, to sustain in law. 20. The order of the 5th respondent impugned in this writ petition suffers from a serious flaw as noticed above and, therefore, is indefensible. He was not justified in denying the petitioner scale no.10. In the result, the order impugned stands set aside. The petitioner’s claim for being entitled to scale no.10 must succeed and she is held entitled to scale no.10 (pre-revised). 21. The 5th respondent shall immediately, but not later than 4 (four) weeks from the date of receipt of a copy of this judgment and order, pass an appropriate order entitling the petitioner to scale no.10 with retrospective effect from the date she acquired the higher qualification (the degree in Library Science). Arrear financial benefits, as a consequence of entitlement to scale no.10 (pre-revised) as well benefits arising out of revision of pay corresponding to such scale, shall be paid to the petitioner in course of 6 (six) months next from the date of the order to be passed by the 5th respondent in terms of this order. If funds are requisitioned by the 4th to the 6th respondents from the State Government, the Finance Department shall not waste any time to sanction the same. 22. This mandatory order is made bearing in mind paragraph 20 of the decision of the Supreme Court in Comptroller and Auditor General vs. K. S. Jagannathan, reported in AIR 1987 SC 537 . 23. The writ petition stands allowed, without order for costs. 22. This mandatory order is made bearing in mind paragraph 20 of the decision of the Supreme Court in Comptroller and Auditor General vs. K. S. Jagannathan, reported in AIR 1987 SC 537 . 23. The writ petition stands allowed, without order for costs. Urgent photostat certified copy of this judgment and order, if applied for, may be furnished to the applicant at an early date.