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Gauhati High Court · body

2019 DIGILAW 1234 (GAU)

R. Lalawmpuii v. Union of India

2019-11-15

SONGKHUPCHUNG SERTO

body2019
JUDGMENT : S. Serto, J. 1. Heard Mr. A.R. Malhotra, learned counsel appearing for the petitioners and also heard Mr. B. Lalramenga, learned counsel appearing for the respondent No. 4 and Ms. Zairemsangpuii, learned CGC appearing for the respondent Nos. 1 to 3. 2. The pay and allowances of the regular employees of Regional Institute of Paramedical and Nursing Sciences (in short, RIPANS) an Autonomous Central Government undertaking at Aizawl were given the benefits of 7th Pay Revision of the Central Government Employees w.e.f. 01.01.2016 vide order dated 07.10.2017, issued by the Ministry of Health and Family Welfare, Government of India. Thereafter, the contract employees of the same Autonomous Institution were also given the benefits of 7th Pay Commission w.e.f. 11.04.2018 vide order dated 16.04.2018, issued by the respondent No. 4 in pursuance of approval of the Ministry of Health and Family Welfare, Government of India conveyed through a letter dated 11.04.2018. Being aggrieved by the fact that the benefits of the 7th Pay Commission was granted to them on a different date latter than the date on which the regular employees of the same Institution were given they have come before this Court challenging the letter dated 11.04.2018 in which approval of the Ministry of Health and Family Welfare to extend the benefits of the 7th Central Pay Commission to the contract employees of RIPANS was conveyed and the order dated 16.04.2018, issued by the respondent No. 4 extending the benefit with effect from 11.04.2018 and the letter dated 03.08.2018 of the Ministry of Health and Family Welfare clarifying that the effective date of the implementation of the 7th Pay Commission in respect of the petitioners/contract employees would be from the date the approval was given and the order dated 07.08.2018, which is consequential order issued after receiving the letter of clarification of the Ministry of Health and Family Welfare. 3. The facts and circumstances which led to the filing of the petition as submitted by Mr. A.R. Malhotra, learned counsel of the petitioners are as follows: The petitioners are contract employees of RIPAN working in different capacities and serving the Institution since their appointment. 3. The facts and circumstances which led to the filing of the petition as submitted by Mr. A.R. Malhotra, learned counsel of the petitioners are as follows: The petitioners are contract employees of RIPAN working in different capacities and serving the Institution since their appointment. They were appointed for smooth running of the Institution with Basic Pay + Grade Pay + 50% of D.A. In the year 2016, the pay and allowances of the regular employees of RIPAN were revised as per the recommendation of the Central Pay Commission w.e.f. 01.01.2016 vide order dated 07.10.2017. Being aggrieved by the fact that their pay and allowances have not been revised as in the case of regular employees, the petitioners submitted a representation dated 07.12.2017 to the respondent No. 4 and the respondent No. 4 after considering the contents of the representation wrote a letter dated 12.12.2017, to the Joint Secretary, Ministry of Health and Family Welfare requesting him to consider the request of the petitioners. In response to the request made in the letter, the Government of India, Ministry of Health and Family Welfare (NE Section) agreed to extend the benefits of the Central Pay Commission to contract employees of RIPANS and vide letter No. U-12026/01/2018-NE, dated 11.04.2018, the same was conveyed to the respondent No. 4. Pursuant thereto, the respondent No. 4 issued the office order dated 16.04.2018, No. A-26023/1/2012-RIPANS granting the benefits of 7th Pay Commission w.e.f. 11.04.2018. 4. Not being satisfied with the fact that the date of implementation of the 7th Pay Commission in respect of contract employees was much latter than that of the regular employees a representation was submitted to the respondent No. 4 requesting for implementation of the 7th Pay Commission in respect of contract employees w.e.f. the same date on which regular employees of the Institution were given the benefit of the 7th Pay Commission. The representation was forwarded to the Ministry of Health & Family Welfare, Government of India. On 03.08.2018, the Under Secretary to the Government of India, Ministry of Health and Family Welfare (NE Section) vide his letter No. U-12026/ 01/2018-NE conveyed to the respondent No. 4 that the effective date for extending the benefit of 7th Central Pay Commission to contract employees/petitioners shall be w.e.f. 11.04.2018 i.e. the date on which the approval of the competent authority was conveyed to the Institute. Soon after receipt of the said letter, the respondent No. 4 on 07.08.2018 issued the consequential order being office order No. A-26023/1/2018-RIPANS/8, dated 07.08.2018, in which it is stated that the benefit of payment of remuneration to contract employees of RIPANS in terms of the Central Pay Commission shall be w.e.f. 11.04.2018, the date on which the approval of the competent authority was conveyed to the Institute. Being aggrieved by the said orders the petitioner are before this Court. 5. Mr. A.R. Malhotra, learned counsel for the petitioners submitted that neither in the letter conveying the approval of the Ministry of Health and Family Welfare nor in the consequential order issued by the respondent No. 4 any reason for the differential treatment was given, therefore, the approval order and the consequential order denying the benefits of 7th Pay commission with effect from the same date on which regular employees of RIPANS were given is arbitrary and unreasonable. As such, they deserve to be quashed and set aside. The learned counsel also submitted that the nature of duty performed by the contract employees is same with that of the regular employees, therefore, there is no reason why they should not be treated equally in matters of service conditions or benefits. Mr. Malhotra further submitted that in the affidavit of the respondents it has been stated that the competent authority is kind enough to consider the remuneration of the contractual employee in line with the recommendation of 7th Pay Commission but it should not be understood as a matter of right. And, as for the effective date it is entirely up to the competent authority i.e. the Administrative Ministry. This submission of the respondents, according to the learned counsel shows the arbitrary attitude of the respondents in the decision making process and the same is not permissible under the scheme for consideration. The learned counsel thereafter, referred to para-6 of the judgment in the case of State of Madhya Pradesh and Others vs. Mala Banerjee, (2015) 7 SCC 698 . The same reads as follows: "6. We also find ourselves unable to agree with the appellants submission that this is a policy matter and, therefore, should not be interfered with by the courts. In Federation of Railway Officers Assn. The same reads as follows: "6. We also find ourselves unable to agree with the appellants submission that this is a policy matter and, therefore, should not be interfered with by the courts. In Federation of Railway Officers Assn. vs. Union of India, this Court has already considered the scope of judicial review and has enumerated that where a policy is contrary to law or is in violation of the provisions of the Constitution or is arbitrary or irrational, the courts must perform their constitutional duties by striking it down. The appellants have not been able to explain why it chose to deny teachers the benefit of the second Kramonnati while granting this benefit to all the other employees, thus discriminating against them and violating their fundamental rights enshrined in Articles 14 and 16 of the Constitution. It is indeed paradoxical that teachers who prepare persons for employment and leadership are dealt with in a parodical attitude by the State. Further, we reiterate that no explanation is forthcoming for granting the second Kramonnati with effect from 1-8-2003. This is neither the date in the original Scheme nor justifiable on the basis of any other material available on the record. Many employees had completed twenty-four years of service by 1999, therefore, in postponing their second Kramonnati by four years, the appellants have departed from the basic object of the Scheme. The 3-9-2005 Order failed to explain the basis of this decision and is thus arbitrary in nature and discriminatory towards the respondents and others in their position." The learned counsel by referring to the portion of the judgment underline also submitted that if a policy decision is contrary to law or is in violation of the provisions of the Constitution or is arbitrary or is irrational, courts can always interfere with such kind of decision making process. Furthermore, Mr. Malhotra referred to order dated 16.10.2019, issued by the respondent No. 4 and submitted that the date on which the Dearness Allowance was revised for both the regular employees and contract employees is same as such, there is no reason why the benefit of 7th Pay Commission should not be given to both the regular employees and the contract employees on the same date. 6. Mr. 6. Mr. Lalramenga, learned counsel appearing for the respondent No. 4 by referring to the date on which approval of the Ministry of Health and Family Welfare was conveyed to the respondent No. 4 regarding the extension of benefits of 7th Pay Commission to contract employee submitted that the respondent No. 4 had issued the consequential order dated 07.08.2018, as per direction of the Ministry of Health and Family Welfare since the Institution its under control. He also submitted that the respondent No. 4 could not have extended the benefit of 7th Pay Commission to contract employee on any other date then the date indicated by the Ministry. The learned counsel also submitted that the petitioners are contract employees and they are entitled to pay and allowances in terms of their contract and they could not have claimed the benefit of 7th Pay Commission which is outside the purview of their contract. In fact, the benefit of 7th Pay Commission was extended to them in due consideration of their contribution to the Institution, therefore, they cannot ask for the same as a matter of right and at par with the regular employees. Mr. Lalramenga then referred to the communication between the respondent No. 4 and the respondent No. 1, 2 and 3 and submitted that it was due to the effort made by the respondent No. 4 on the request of the petitioners that the benefit of 7th Pay Commission was extended to the petitioners and not because the petitioners are entitled to the same. Lastly, the learned counsel submitted that among the petitioners the petitioner Nos. 16, 25, 34, 35 and 38 has already left their respective service on 11.05.2017, 03.06.2018, 03.09.2018, 26.03.2018 and 31.07.2018 respectively. 7. Ms. Zairemsangpuii, learned CGC appearing for the respondent Nos. 1 to 3 submits that she has nothing much to say other then what the learned counsel of the respondent No. 4 has submitted, as such, she concurs with the submission of the learned counsel. She also submitted that the respondent No. 4 in fact was entrusted to file affidavit by the Ministry on their behalf. 8. I have considered the submissions of the learned counsels and the contents of the writ petition, the subsequent additional affidavit filed by the petitioners and the affidavit of the respondent Nos. 1 to 3 filed on their behalf by the respondent No. 4. 8. I have considered the submissions of the learned counsels and the contents of the writ petition, the subsequent additional affidavit filed by the petitioners and the affidavit of the respondent Nos. 1 to 3 filed on their behalf by the respondent No. 4. There is no dispute on the facts stated above. The only point of contention is whether the petitioners should have been given the benefit of 7th Pay Commission with effect from the same date on which regular employees of RIPANS that is the same Institution were given. It is true that the petitioners are contract employees and they are bound by terms and conditions of their contract. However, it is quite clear from the letter dated 12.12.2017, that they were employed to meet the exigencies and they had contributed much to the progress, development and success of the Institution RIPANS. It is also quite clear from the facts and circumstances revealed by the documents that the Ministry of Health & Family Welfare decided to extend the benefit of 7th Pay Commission to the contract employees considering their contribution in the health and strength of the Institution itself and the fact that the Institution itself is able to contribute more than 68.7% of the total financial implication for implementation of the recommendation of the 7th Pay Commission. From all these, one can conclude that the service of the petitioners was and is still required and they have made significant contribution towards growth of the institution which today makes it stand tall in the region. Therefore, I am of the view that the respondents have rightly extended the benefit of 7th Pay Commission to the petitioners. However, on the date on which the benefit has been extended to the petitioners, I am in agreement with the submission of the learned counsel of the petitioners that the approval order and the consequential order bears no reason whatsoever for not extending the benefit to the petitioners on the same date as that of the regular employees of the same institution. Every official order or notification or memorandum issued by the Government machinery should be based on tangible and reasonable reason or reasons and they cannot be arbitrary and devoid of reasonable reason or reasons. Any order or policy of any Government machinery has to stand the test of law. Every official order or notification or memorandum issued by the Government machinery should be based on tangible and reasonable reason or reasons and they cannot be arbitrary and devoid of reasonable reason or reasons. Any order or policy of any Government machinery has to stand the test of law. The fact that the petitioners are contract employees would not make any difference when the benefit has been already extended to them. Moreover, the classification between the two i.e. regular and contract employees on the date of implementation is not reasonable and it is discriminatory. 9. In view of the reasons stated above, the impugned orders are quashed and set aside and the respondents are directed to extend the benefit of 7th Pay Commission to the petitioners with effect from the same date on which the benefit was extended to the regular employees of the same Institution. 10. Needless but the respondents shall take step for the benefit to be extended to the petitioners within a period of 4(four) months from the date of receipt of a certified copy of this order. 11. Writ petition stands disposed.