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2024 DIGILAW 313 (CAL)

Subhasish Das v. State of West Bengal

2024-02-08

PARTHA SARATHI SEN

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JUDGMENT : PARTHA SARATHI SEN, J. 1. Both the writ petitioners and the respondents/State and its officials are represented by their respective learned advocates. 2. The affidavit-in-opposition as filed on behalf of the respondents/State is taken on record. 3. By filing the instant writ petition under Article 226 of the Constitution of India, the writ petitioners have prayed for an order for fixation of their salary/remuneration in terms of the Notification No. 1107-F(P) dated 25.02.2016 and Notification No. 1033-F(P2) dated 08.02.2019 as issued by the Finance (Audit) Department, Government of West Bengal. 4. In support of the instant writ petition, Mr. Dhar, learned advocate for the writ petitioners at the very outset submits before this Court that the present writ petitioners have been employed either in Group ‘C’ or Group ‘D’ posts in Other Backward Class Welfare (OBCW) Department. According to Mr. Dhar, the writ petitioner no. 1 being a Group ‘C’ employee is getting salary of Rs. 12,000/- per month, writ petitioner no. 2 being a Group ‘C’ employee is getting salary of Rs. 8,000/- per month, writ petitioner no. 3 being a Group ‘D’ employee is getting salary of Rs. 3,000/- per month, writ petitioner no. 4 being a Group ‘C’ employee is getting salary of Rs. 8,000/-per month, writ petitioner no. 5 being a Group ‘D’ employee is getting salary of Rs. 3,500/- per month and the writ petitioner no. 6 being a Group ‘D’ employee is getting salary of Rs. 3,000/- per month. 5. Drawing attention to Annexure P-2 at Page-46 being Government of West Bengal Finance Department Memo No. 9008-F(P) dated 16.09.2011, Notification No. 1107-F(P) dated 25.02.2016 and Notification No. 1033-F(P2) dated 08.02.2019, it is contended by Mr. Dhar that though the respondent/State has duly considered the emoluments and benefits of the contractual employees are meager and thus issued the aforesaid three notifications time to time to revise the benefits for extending the same to the causal/daily rated/contractual workers who are working in different departments of the State/respondent, for the reasons best known to the respondents herein, such financial benefits have not been extended in the case of the petitioners in spite of making several representations. 6. It is further contended that the similarly circumstanced contractual employees in other departments even in OBCW Department have also been extended the benefits of the said three notifications. 6. It is further contended that the similarly circumstanced contractual employees in other departments even in OBCW Department have also been extended the benefits of the said three notifications. It is, thus, submitted on behalf of the petitioners that the aforesaid action on the part of the State/respondent violates the principle of “equal pay for equal work” which is guaranteed under Article 14 of the Constitution of India and which has been affirmed by the Hon’ble Apex Court in a catena of judgments. 7. In course of his submission, Mr. Dhar places his reliance upon the reported decision of State of Punjab and Others vs. Jagjit Singh and Others, (2017) 1 SCC 148 . Mr. Dhar thus submits that it is a fit case for allowing the instant writ petition directing the respondents to pay the increased salary including the arrears salary as per their Notifications dated 25.02.2016 and 08.02.2019. 8. Per Contra, Mr. Basu, learned advocate for the respondent/State at the very outset submits before this Court that since the writ petitioners are working in different post and in different office, they cannot join to ventilate their grievance by filing a single writ petition in absence of any joinder of cause of action and/or similarity of the stand of the present writ petitioners. It is further argued that even inadequate court fees have been paid by the present writ petitioners in this writ petition. 9. It is further submitted by Mr. Basu that from the annexure to the writ petition, it would reveal that the period of employment as contractual basis of the present petitioners are less than 10 years even then in the writ petition they have stated that they have rendered 10 years of service which is contrary to the truth and for such willful wrong statement, the present writ petitioners are not entitled to any relief even any equitable relief. 10. In Course of his argument, Mr. Basu, also places his reliance upon the Notification No. 9008-F(P) dated 16.09.2011 as issued by the Finance Department. It is argued by Mr. 10. In Course of his argument, Mr. Basu, also places his reliance upon the Notification No. 9008-F(P) dated 16.09.2011 as issued by the Finance Department. It is argued by Mr. Basu that from the very first paragraph of the said notification, it would reveal that the respondents/State while issuing the said notification for modification of the emoluments of the contractual/daily rated employees have considered those employees who can come under the zone of consideration under the said notification who have worked for a considerable period of more than ten years and who have been recruited in sanctioned posts. According to Mr. Basu, the classification as made by the respondents/State cannot be termed as an unreasonable classification because the same is not creating a class amongst classes. 11. It is further contended by Mr. Basu that on perusal of the subsequent Notifications dated 25.02.2016 and 08.02.2019, it would reveal that those two subsequent notifications are mere addendum to the previous notification dated 16.09.2011 and those have been issued by the respondents/State considering escalation of price and cost of living and the financial need of the contractual/daily rated employees. It is further argued by Mr. Basu that under no stretch of imagination, it can be said that the subsequent two notifications have an superceding effect over the notification dated 16.09.2011. It is thus argued by Mr. Basu that since the present writ petitioners’ tenure of work are less than the period as mentioned in the memorandum dated 16.09.2011 and since they have not been recruited against sanctioned posts, they cannot claim any further financial benefit at least at present on the basis of the subsequent two notifications dated 25.02.2016 and 08.02.2019. 12. Mr. Basu thus, submits before this Court that it is a fit case for dismissal of the instant writ petition. 13. Mr. Dhar in course of his reply, however, disputes that the present writ petitioners have not been recruited against sanctioned posts. Mr. Dhar, learned advocate for the writ petitioners draws attention of this Court to pages 8 to 10 of affidavit-in-opposition. 14. 13. Mr. Dhar in course of his reply, however, disputes that the present writ petitioners have not been recruited against sanctioned posts. Mr. Dhar, learned advocate for the writ petitioners draws attention of this Court to pages 8 to 10 of affidavit-in-opposition. 14. On perusal of the entire materials as placed before this Court and after hearing the submissions of the learned advocates for the contending parties it appears that it is undisputed that the present writ petitioners have been appointed in OBCW Department as contractual employees and their emoluments/salary have been mentioned in their letter of appointment which have been annexed with the writ petition. 15. Admittedly, the present writ petitioners have been appointed in different posts even in different categories and prima facie it appears to this Court that they cannot stand in a common platform to ventilate their grievance by filing a single writ petition. However, considering the fact that the present writ petitioners are working in the same department i.e. OBCW Department and considering the fact that nature of grievance ventilated by the present writ petitioners are more or less same and/or are of common nature, this Court in exercise of its plenary power permits the writ petitioners to ventilate their grievance by filing a common writ petition which they have done, however, they are to file the requisite court fees in this writ petition independently irrespective of the fate of the instant writ petition. 16. In order to come to a logical conclusion as to whether the benefits of the notifications dated 25.02.2016 and 08.02.2019 can be extended to the present writ petitioners, this Court proposes to look to the first paragraph of the memorandum dated 16.09.2011 as published by the Finance Depart of the Government of West Bengal and the same is quoted herein-below in verbatim: “In order to provide security of tenure, appropriate emoluments and certain terminal benefits subject to fulfilment of certain conditions to the casual/daily rated/contractual workers who have remained engaged in various Government Establishments for a considerable period of more than 10 years in connection with implementation of various schemes/projects of various Departments of the government two Memorandums vide No. 2966-F(P) dated 23-04-2010 and No. 11794-F(P) dated 22-12-2010 were issued by the Government in Finance Department.” 17. On perusal of the aforesaid relevant portion of the memorandum as issued by the respondents/State, it reveals to this Court that the respondents/State had an intention to provide security of tenure, appropriate emoluments and some terminal benefits to the casual/daily rated/contractual workers who have worked for a considerable length of more than 10 years. Admittedly, the petitioners before this Court have worked not more than 10 years. At this juncture, if we look to the subsequent two notifications dated 25.02.2016 and 08.02.2019, it reveals to this Court that the respondents/State while issuing such notification has again considered the eligibility of the entitlement of the appropriate emoluments, security of tenure and certain terminal benefits to the casual/daily rated/contractual workers who are working in different department of the State and categorized the said employees in different tables on the basis of their period of engagement such as less than 5 years, 5-10 years, 10-15 years, 15-20 years and more than 20 years. 18. On comparative study of the aforesaid three notifications as discussed (supra), it thus appears that while issuing the subsequent two notifications dated 25.02.2016 and 08.02.2019, the State authority has also considered the case of the casual/daily rated/contractual workers who had worked less than 10 years i.e. those employees have been categorized under two tables namely, ‘less than 5 years’ and ‘5-10 years’. In view of such categorization, in considered view of this Court, the ceiling of 10 years as fixed by the respondents/State by its notification dated 16.09.2011 had given a good-bye. 19. In view of the discussion, this Court thus holds that the Notification No. 9008-F(P) dated 16.09.2011 has practically lost its significance in respect of those contractual/daily rated/casual workers who have worked for less than 10 years. 20. Sufficient materials have been placed before this Court that the present writ petitioners are working in the aforesaid department for emolument/emoluments which is far below the emoluments as fixed under the subsequent notifications dated 25.02.2016 and 08.02.2019 and it has been placed before this Court that the similarly circumstanced employees in other departments are receiving such benefits and the said departments have also issued the relevant G.O. in concurrence with the Finance Department, Government of West Bengal. 21. 21. At this juncture, this Court may safely rely upon the reported decision of Jagjit Singh (Supra) wherein the Hon’ble Apex Court while upholding the principle of “equal pay for equal work” express the following view: “42. All the judgments noticed in Paras 7 to 24 hereinabove, pertain to employees engaged on regular basis, who were claiming higher wages, under the principle of “equal pay for equal work.” The claim raised by such employees was premised on the ground, that the duties and responsibilities rendered by them were against the same post for which a higher pay scale was being allowed in other government departments. Or alternatively, their duties and responsibilities were the same as of other posts with different designations, but they were placed in a lower scale. Having been painstakingly taken through the parameters laid down by this Court, wherein the principle of “equal pay for equal work” was invoked and considered, it would be just and appropriate to delineate the parameters laid down by this Court. In recording the said parameters, we have also adverted to some other judgments pertaining to temporary employees (also dealt with, in the instant judgment), wherein also, this Court had the occasion to express the legal position with reference to the principle of “equal pay for equal work.” Our consideration, has led us to the following deductions: 42.1. The “Onus of proof” of parity in the duties and responsibilities of the subject post with the reference post under the principle of “equal pay for equal work” lies on the person who claims it. He who approaches the court has to establish that the subject post occupied by him requires him to discharge equal work of equal value, as the reference post. 42.2. The mere fact that the subject post occupied by the claimant is in a “different department” vis-a-vis the reference post does not have any bearing on the determination of a claim under the principle of “equal pay for equal work.” Persons discharging identical duties cannot be treated differently in the matter of their pay, merely because they belong to different departments of the Government. 42.3. The principle of “equal pay for equal work” applies to cases of unequal scales of pay, based on no classification or irrational classification. 42.3. The principle of “equal pay for equal work” applies to cases of unequal scales of pay, based on no classification or irrational classification. For equal pay, the employees concerned with whom equation is sought, should be performing work, which besides being functionally equal, should be of the same quality and sensitivity. 42.4. Persons holding the same rank/designation (in different departments), but having dissimilar powers, duties and responsibilities, can be placed in different scales of pay and cannot claim the benefit of the principle of “equal pay for equal work.” Therefore, the principle would not be automatically invoked merely because the subject and reference posts have the same nomenclature. 42.5. In determining equality of functions and responsibilities under the principle of “equal pay for equal work” it is necessary to keep in mind that the duties of the two posts should be of equal sensitivity, and also, qualitatively similar. Differentiation of pay scales for posts with difference in degree of responsibility, reliability and confidentiality, would fall within the realm of valid classification, and therefore, pay differentiation would be legitimate and permissible. The nature of work of the subject post should be the same and not less onerous than the reference post. Even the volume of work should be the same. And so also, the level of responsibility. If these parameters are not met, parity cannot be claimed under the principle of “equal pay for equal work.” 22. Keeping in mind the proposition of law as enunciated in the decision of Jagjit Singh (Supra), the nature of duties as performed by the writ petitioners as available from their respective letters of appointment, this Court finds that there cannot be any justification on the part of the respondents/State to deprive the present writ petitioners from the beneficial effect of the notification no. 1107-F(P) dated 25.02.2016 and 1033-F(P2) dated 08.02.2019 as issued by the Finance (Audit) Department (Government of West Bengal) especially when they have been appointed against sanctioned posts which is evident from Memo No. 786-BCW/5S-03/2013 dated 26.02.2016 which has been annexed with the mark ‘R-1’ with the affidavit-in-opposition as filed by the State/respondents. 23. Accordingly the instant writ petition is allowed. 24. The respondent no. 4 in concurrence with the respondent no. 23. Accordingly the instant writ petition is allowed. 24. The respondent no. 4 in concurrence with the respondent no. 3 is hereby directed to implement the benefit of the aforesaid two notifications dated 25.02.2016 and 08.02.2019 in respect of the present writ petitioners from the date of the publication of the aforesaid two notifications and/or from the date of their engagement whichever is later within three months from the date communication of this order. The respondent no. 4 in concurrence with the respondent no. 3 is further directed to pay the arrears salary and/or emoluments of the present writ petitioners also within the period of six months from the date of communication of this order. 25. Liberty is given to the present writ petitioners to file the deficit court fees on the writ petition within a week from the day of passing of this order failing which this order will not take effect. 26. With the aforementioned observations, the instant writ petition being WPA No. 11914 of 2021 is disposed of.