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2025 DIGILAW 1406 (GAU)

Jitumani Das v. Union of India

2025-08-21

SOUMITRA SAIKIA

body2025
Judgment : SOUMITRA SAIKIA, J. 1. Heard Mr. B. Chakraborty, learned counsel for the petitioners. Also heard Ms. A. Gayan, learned CGC; Mr. J.K. Goswami, learned counsel for the State Government and Mr. R.K. Talukdar, learned Standing Counsel for the respondent no. 4. 2. The writ petitioners before this Court are employed as Data Entry Operators, Copyists, Office Peons and Chowkiders in the various Foreigners Tribunals established for references with regard to the Nationality of suspected foreigners or doubtful citizens. The petitioners were appointed pursuant to an advertisement issued by the Gauhati High Court vide the advertisement No. HC.XXXVII-36/2015/859/R.Cell dated 06.08.2015 (Annexure-2). By the said advertisement, in view of the establishment of the Foreigners Tribunals of Assam under the jurisdictions of the Gauhati High Court, the posts were advertised on contractual basis for period of 2 (two) years. Several posts including the posts of LD Assistants, Bench Assistants, Typists, Stenographers- II/III etc were advertised indicating the pay scale and the grade pay. However, for the posts of Data Entry Operators, Copyists, Office Peons and Chowkidars were advertised on a fixed pay basis. The petitioners applied for and were duly selected in these posts of Data Entry Operators, Copyists, Office Peons and Chowkidars. Pursuant to their appointments the petitioners were posted across the State of Assam in various Foreigners Tribunals and have been rendering their services ever since. The services of the petitioners although were initially for a period of 2(two) years stood extended subsequently by orders passed by the competent authority in the Government. The grievance raised by the writ petitioners are two folds : first it is submitted that although their appointments were initially for the period of 2 (two) years on contract basis however their services have been continued or extended on from time to time by orders passed by the competent authority. The second limb of their argument is that the petitioners are performing the same works as have been done across the State in other Government offices as well as in Courts, however, their salary has not been brought to at par the pay scale which is applicable to the said such posts. Consequently, they have been working on a fixed pay basis for all these years. 3. Consequently, they have been working on a fixed pay basis for all these years. 3. The learned counsel for the petitioners has extensively relied upon the Judgment rendered by the Apex Court in Jagjit Singh and Others Vs State of Punjab and Others reported in (2017) 1 SCC 148 . Referring to the said judgment he submits that the judgment of the Apex Court lays down that for equal pay for equal work irrespective of the nomenclature on the status of this employees concerned. It is submitted that the respondents authorities are duty bound in law to grant equal pay to the petitioners who are rendering services in their posts, in the same pay scale as have been granted to other posts across the State. It is submitted that a proposal was mutated by the Government of Assam, Political (B) Department for revision of the current remuneration structure from fixed pay to “scale pay” in respect of these posts of namely Data Entry Operator, Copyist, Office Peon, Chowkidar etc. This communication dated 01.08.2023 was addressed to the Ministry of Home Affairs, Government of India. The said proposal, however, stood rejected by communication dated 28.08.2023 issued by the Ministry of Home Affairs. By the said communication the State Department was informed that since the Government of Assam had proposed creation of supporting staff on contract basis and they have been engaged on contract basis against temporary posts created for additional temporary 64 Foreigners Tribunals their services are purely temporary in nature and not governed by the Rules and Regulations applicable to regular Government servants. Therefore, it is not feasible to grant regular pay scale to these temporary supporting staff engaged on contractual basis. 4. The learned counsel for the petitioners has also referred to an office memorandum of issued by the Government of India Office Memorandum No. 49014/2/86 Estt.(C) dated 07.06.1988 regarding review of policy of casual workers and persons on daily wages. This Office Memorandum stood subsequently revised and a subsequent Office Memorandum dated 04.09.2019 was issued whereby the Government of India decided that where the nature of work entrusted to the casual workers and regular employees is the same, the th casual workers may be paid at the rate of 1/30 of the pay at the minimum of the relevant pay scale plus Dearness Allowance for the work of 8 hours of a day. 5. Ms. 5. Ms. A. Gayan, learned CGC representing the State disputes the contentions raised by the learned counsel for the petitioners it is submitted on behalf of the Union that the entry into the service was pursuant to an advertisement issued by the High Court dated 06.08.20215 and it is clearly evident from this said advertisement that all these posts were on contractual basis and the posts of Data Entry Operators, Copyists, Office Peons and Chowkidars whereon fixed pay basis. It is submitted that the petitioners having accepted their terms of appointment now cannot claim parity of pay with regard to other regular government employees. It is submitted that the Office Memorandum referred to by the learned counsel for the petitioners are not applicable to contractual employees as a mere perusal of the office memorandum reflects that it is meant for casual workers only. It is submitted that although the petitioners’ appointments were extended from time to time by appropriate orders it is equally necessary to note that while rejecting the prayer for pay revision by the Government of India, it was clearly indicated that the Ministry of Home Affairs issued directions or instructions to the Government of Assam to manage supporting staff through outsourcing of services on contractual basis vide the letter No. 11012/13/2013 dated 06.06.2013 on a fixed pay. However, the Government of Assam engaged the supporting staff on contract basis through the advertisement. Therefore the claim of the petitioners for parity of pay or grant of appropriate pay scale is not applicable as the terms of their appointments are clearly reflected in the advertisement dated 06.08.2015 issued by the High Court. 6. Referring to the judgment cited by the learned counsel for the respondents submits that in view of the nature of engagement of the writ petitioners, the findings of the Apex Court in the judgment of Jagjit Singh and others (supra) will not be applicable as the basis of the appointments of the petitioners was the advertisement dated 06.08.2015 which clearly indicated that the appointments were on contract basis and on fixed pay. 7. The learned counsel for the parties have been heard. Pleadings available in the records have been carefully perused. 8. 7. The learned counsel for the parties have been heard. Pleadings available in the records have been carefully perused. 8. The petitioners were appointed as in various capacities as Data Entry Operator, Copyist, Office Peon and Chowkidar, pursuant to the advertisement dated 06.08.2015 for rendering their services in various Foreigners Tribunals across the State of Assam. The establishments of the Foreigners Tribunals are pursuant to directions of the Apex Court read with such decisions taken by the Government both the Central as well as the State at the appropriate level. The purpose of the Foreigners Tribunals is to render opinions on references made by the state agencies where the question of citizenship or nationality of any person is under a cloud on the basis of such investigations carried on by the State agencies. Time and again the functioning of the Foreigners Tribunals have been closely monitored by the Apex Court as well as by this Court. Presently, Gauhati High Court has a Monitoring Bench for monitoring the functioning and efficiency of the Foreigners Tribunals established across the State. This issue was earlier raised before the same Monitoring Bench however by order dated 31.08.2023 the Monitoring Bench directed that these issues being personal to each of the individual employees as such the same was not required to be monitored or supervised by the Monitoring Bench and liberty was granted to these persons or employees to approach appropriate forum individually. It is pursuant to this order passed that this writ petition has been filed. It has not been urged before this Court by the respondent State or the Union that the services rendered by the petitioners are no longer necessary, or that they are likely to be dispensed with in view of any policy decision by the State or the Union regarding the administration and functioning of the Foreigners Tribunals across the State. There have been several judgments of this Court as well as of the Apex Court which have time and again dealt with the functioning and the peculiar nature of the opinions rendered by the Foreigners Tribunals on the references made to them by State agencies. It has been emphasized that these references are required to be answered either in affirmative or negative but these references require expeditious disposal as it puts the status of a nationality such individual under a cloud. It has been emphasized that these references are required to be answered either in affirmative or negative but these references require expeditious disposal as it puts the status of a nationality such individual under a cloud. An opinion rendered against an individual to the effect that he is not an Indian national and/or had entered the State of Assam on or after 25.03.1971 carries serious civil consequences, as it directly affects the individual’s legal status and determination of nationality as an Indian citizen. Such opinions in order to be rendered by the Foreigners Tribunals as expeditiously as possible it is necessary that the Tribunals function at its optimum and for which purpose the services of the supporting staff like those of the petitioners are considered indispensable. It is not disputed by the respondents that services of the writ petitioners are still required in the Foreigners Tribunals functioning across the State. No alternative mechanism as on date has been brought out by the State or by the Union to suggest that the functioning of the FTs have been reorganized in such a manner that the services of the supporting staff like that of the petitioners will have to be phased out in a time bound manner. No such pleadings are available before the Court. 9. Although exact figures are not placed before the Court, this Court is given to understand that substantial numbers of such references are still pending several FTs across the State. 10. In State of Assam Vs. Moslem Mandal reported in Review Petition No. 22 of 2010 (FB) while deciding the questions referred, a Full Bench of this Court specifically highlighted the speedy dispensation of justice by these Foreigners Tribunals. Although the emphasis was on the appointments of Judicial or retired Judicial Officers as presiding officers of various Tribunals, the fact remains that in order these Tribunals function effectively and efficiently were appointment of Judicial Officers will not achieve the desired results. The Tribunal although not a Court, yet has the trappings of a Court and therefore, in order for the Tribunals to function efficiently, the services of supporting staff like the LD Assistant, Bench Assistant, Typist, Stenographer Grade II/III, Data Entry Operator, Copyist, Office Peon, Chowkidar etc are equally necessary. 11. The Tribunal although not a Court, yet has the trappings of a Court and therefore, in order for the Tribunals to function efficiently, the services of supporting staff like the LD Assistant, Bench Assistant, Typist, Stenographer Grade II/III, Data Entry Operator, Copyist, Office Peon, Chowkidar etc are equally necessary. 11. As have been discussed above, although for the posts of LD Assistant, Bench Assistant, Typist, Stenographer Grade II/III etc the advertisement issued by the High Court dated 06.08.2015 reflects the scale of pay of these posts, however for the posts of Data Entry Operators, Copyists, Office Peons and Chowkidars, no scale of pay is reflected. These posts were shown to be posts payable on fixed pay system. While it is true that the petitioners had applied for and had accepted the terms of employment and have been appointed and have continued to render their services, however, the fact remains that their claims for grant of equal pay or at least consideration for payment of their salaries on scale pay basis rather than on fixed pay cannot be over looked taking into context the economics of price index as well as the judgments rendered by this Court as well as by the Apex Court time and again. 12. In Jagjit Singh (supra) the questions of parity in pay scale was issue before the Apex Court. One of the claims of the affected party was their entitlement to the minimum regular pay scale on the ground that the temporary employees were performing the same duties. The Apex Court in this authoritative judgment had elaborately discussed the earlier precedents and have laid down in a clear unequivocal terms that differential treatment matted out to temporary employees on the subject of wages was considered to be unjustified and was held to be unsustainable and was therefore set aside and quashed. In respect of the claims of temporary employees the Apex Court held that there is no room for any doubt that the principle of “equal pay for equal work” has emerged from an interpretation of different provisions of the Constitution. The interpretations of these provisions have been laid down by several judgments which are discussed in the judgment of Jagjit Singh (supra). This being law declared by the Apex Court, the same was binding under Article 141 of the Constitution of India. The interpretations of these provisions have been laid down by several judgments which are discussed in the judgment of Jagjit Singh (supra). This being law declared by the Apex Court, the same was binding under Article 141 of the Constitution of India. The Apex court held that the principle of “equal pay for equal work” has also been extended to temporary employees (differently described as work charge, daily wage, casual, adhoc, contractual and the like). It was held that it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work cannot be paid less than another who performs the same duties and responsibilities and certainly not in a welfare State. It was held that such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone who is compelled to work at lesser wage does not do so voluntarily. He does so to provide food and shelter for his family and at the cost of self-respect and dignity, at the cost of his self- worth and at the cost of his integrity. For he knows that if he does not accept the lesser wages, his dependants will suffer immensely. Any act of payment of lesser wages as compared to other similarly situated constitutes an act of exploitative enslavement, emerging out of domineering position, therefore such actions were considered oppressive, suppressive and coercive, as it compels involuntary subjugation. Following the judgment of Jagjit Singh (supra) a Division Bench of this Court in an matter where the question was although primarily on regularization of work-charged/master-roll workers, it was held that while the appellants’ claims before the State for regularization was held to be not maintainable however, it was held that they were entitled to minimum scale of pay and other benefits. Reference in this case may be made The State of Assam Vs. Upen Das & Ors. reported in (2017) 4 GLT 493. 13. Having noticed the law as extracted above, the question which false for consideration of this Court is whether the petitioners claim for pay parity and/or their revision of current remuneration from fixed pay to that scale pay deserves consideration. Upen Das & Ors. reported in (2017) 4 GLT 493. 13. Having noticed the law as extracted above, the question which false for consideration of this Court is whether the petitioners claim for pay parity and/or their revision of current remuneration from fixed pay to that scale pay deserves consideration. While the submissions made on behalf of the petitioners have been urged before the Court, the petitioners have not referred to any such instances where other similarly situated persons were employed in the same nature of posts or who have rendering the same or similar nature of work have been granted specific scale of pay while the same has been denied to the petitioners. While omnibus submissions were made by the learned counsel for the petitioners that these posts in which the petitioners are presently rendering their services, employees rendering similar nature of works across various government departments are being provided higher pay and therefore the petitioners are also entitled to have their enhanced pay to maintain parity with those employees rendering such services in such posts. The question however, remains is that there was no material analogy placed before the Court to show that the nature of work undertaken by the petitioners and those employees rendering services across various departments in the State are one and same or that the petitioners are at least performing similar nature of work. 14. Under such circumstances, in the absence of such specific materials placed before the Court, the claims of the petitioners that they are entitled to pay parity with regard to the scale of pay which are being currently made available to employees across the State who are also rendering such similar service and who are serving in such similar posts cannot be entertained in the absence of such specific materials placed before the Court. However, the facts remains that the services rendered by the petitioners are necessary for sustainance and efficiency and functioning of the Foreigners Tribunals as have been discussed above. There is no material placed before this Court that the Foreigners Tribunals are likely to be phased out within a short period of time or that the services rendered by the petitioners are likely to be phased out or are not required or necessary any longer for the functioning of these Foreigners Tribunals. There is no material placed before this Court that the Foreigners Tribunals are likely to be phased out within a short period of time or that the services rendered by the petitioners are likely to be phased out or are not required or necessary any longer for the functioning of these Foreigners Tribunals. It is seen from the proposal forwarded by the State vide the communication dated 01.08.2023 that the State had initiated a proposal for restructuring the remuneration of the supporting working staff engaged in Foreigners Tribunals from fixed pay to that of Scale of pay system. The particulars of total numbers of posts available are also mentioned therein. This proposal however stood rejected by the communication dated 28.08.2023 on the ground that they was an earlier communication of the Ministry that the supporting staff are required to be out sourced on contractual basis by the State and instead the State has engaged the supporting staff directly on contract basis through advertisement. As their services are purely temporary in nature and not governed by Rules or Regulations applicable to Government servants the proposal mooted by the State stood rejected. 15. It appears that the Central Government is conscious of the Judgments rendered by the Apex Court in the aspect of equality of pay/parity of pay as have been rendered in Jagjit Singh and others judgments of the Apex Court. From the Office Memorandum dated 04.09.2019 it appears that the earlier office memorandum stood amended or modified in view of the judgments of the Apex Court. Although the specific judgment is not referred to the OM it is clear that the Central Government is conscious of the law laid down by the Apex Court regarding the grant of minimum wages. By the said office memorandum dated 04.09.2019 although it is issued in respect of casual workers it is seen that the th Government has decided that casual workers be paid 1/30 of the pay of minimum of the relevant pay scale plus Dearness Allowance for work of 8 hours a day. By the said office memorandum dated 04.09.2019 although it is issued in respect of casual workers it is seen that the th Government has decided that casual workers be paid 1/30 of the pay of minimum of the relevant pay scale plus Dearness Allowance for work of 8 hours a day. As such, the view of the Central Government in their communication dated 28.08.2023 that the supporting staff engaged in the Foreigners Tribunals being engaged on temporary posts and their services are purely temporary in nature and not governed by the rules and regulations as a consequence thereof the proposal for rearrangement of their remuneration from fixed pay scale to pay as proposed by the State Government stood rejected, appears to the contrary to the decision taken by the Central Government itself as is discernable from the office memorandum dated 04.09.2019 wherein the Central Government has taken up a decision that casual workers are to be paid at the th rate of 1/30 of the pay of minimum of the relevant pay scale plus Dearness Allowance for work of 8 hours. It is unacceptable for the Central Government to reject the proposal of the State Government for restructuring of the pay of the petitioners from fixed pay to scale of pay. As have been discussed above the Apex Court in Jagjit Singh (supra) has clearly laid down that the questions of parity of pay will also be applicable to all temporary workers including contractual adhoc etc. The fact remains that in view of the services rendered by the petitioners to these Foreigners Tribunals, the functioning of each is essential and is necessary for carrying out the mandate of the Apex Court as well as this Court for rendering opinions on the references made by the State agencies regarding the status of nationality of any individual, this Court is of the considered view that the cases of the petitioners are to be reconsidered by the Central Government. Considering the necessity of their services and considering the fact that their services have been renewed from time to time for effective functioning of the FT the Central Government will reconsider the proposal forwarded by the State for restructuring the pay from fixed pay to scale of pay and thereafter pass appropriate orders there as ensuring that the petitioners are granted a scale of pay instead of fixed pay as have been granted since dates of appointments. These directions are also given by this Court in view of the fact that the same advertisement dated 06.08.2015 reflects that certain posts namely UDA-cum-Accountant, LD Assistant, Bench Assistant, Stenographer Grade-II/III etc which are also shown to be contractual appointees, but their pay structure is shown to be in the pay scale as reflected in these posts. Where the services of the petitioners are equally in-dispensable as that of those employees rendering services as UDA-cum-Accountant, LD Assistant, Bench Assistant, Stenographer Grade-II/III etc there is no justification for the Centre to continue to give a differential structure of pay to the petitioners on the ground that these supporting staff and their appointments were made on contractual basis. 16. The respondents will therefore carry out the directions of this Court within a period of 90 (ninety) days from the date of receipt of the certified copy of this judgment and thereafter pass appropriate orders determining the appropriate scale of pay in which the petitioners can be accommodated and their pay accordingly be continued to be released. 17. The directions given in this judgment will however be prospective in nature. 18. This writ petition is disposed of.