Whether Reporters of Local Papers may be allowed to see the judgment ?
To be referred to the Reporter or not ?
Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
Whether it is to be circulated to the civil judge ?
================================================================ MAHESHKUMAR CHHATRAPATI DAVE & 5....Appellant(s) Versus INSPECTOR GENERAL OF REGISTATION & 2....Respondent(s) ================================================================ Appearance:
MR PJ MEHTA, ADVOCATE for the Appellant(s) No. 1 MR VANDAN K.BAXI, AGP for the Respondent(s) No. 1 - 3 NOTICE SERVED for the Respondent(s) No. 1 - 2 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 20/09/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This Appeal under clause 15 of the Letters Patent is at the instance of an unsuccessful applicant of Special Civil Application No.9233 of 2001 under Article 226 of the Constitution of India and is directed against the judgment and decree dated 13th February 2013 passed by a learned Single Judge of this Court, by which His Lordship rejected the writ-application.
The facts leading to the filing of this Appeal may be summarised as under :
The petitioner was appointed on the post of Packer-cum-Sorter (Class-III) in a Photo Registry Department of the Government in the pay-scale of Rs.200-233 vide order dated 19th July 1984.
The State Government, in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, issued notification dated 26th October 1976 framing rules to provide for regulating recruitment to the posts of Packer-cum-Sorter (Government Photo-Litho Press and Photo Registry in Gujarat Subordinate Service, Class-III of the Printing and Stationery Department called the Packer-cum-Sorter (Recruitment) Rules, 1976. According to the rules, the appointment of the appellant to the post of Packer-cum-Sorter was by way of direct selection.
It is the case of the appellant that although he was appointed to the post of Packer-cum-Sorter, which is a Class-III post, the pay-scale which was fixed at the relevant point of time was that of a Class-IV employee. According to the appellant, he was entitled for the grade of Rs.260-450 which was revised to Rs.2650-4000 and at a later stage, to Rs.3050-4590. However, the Government all throughout kept the appellant in the pay-scale of Rs.200-233 which was revised to Rs.775-1025 and which was further revised to Rs.2610-3540 with effect from 1st January 1996.
According to the appellant, he himself along with other similarly situated employees, kept on representing before the State Government to look into the matter and pass necessary orders for fixing the salary in the pay-scale of Rs.260-450, revised to Rs.950-1500 and further revised to Rs.3050-4590 from the date of his appointment.
Since the Government did not respond to such representation of the appellant, the appellant along with five other similarly situated employees thought fit to file a writ-application being Special Civil Application No.9233 of 2001 and prayed for the following relief :
(A) be pleased to admit and allow this Special Civil Application;
(B) be pleased to issue a writ of mandamus or any other appropriate writ, order or direction or any efficacious instructions against the respondent no.1 and 2 to fix the salaries of petitioner no.1 to 6 Packer-cum-Sorter of Photo-Registry Department of Ahmedabad in grade of Rs.260-450 revised Rs.950-1500 revised Rs.3050-4590 from the date of notification i.e. Annexure-A and calculate the arrears accordingly fixing their salaries and to be released forthwith; in favour of the petitioners in the interest of justice;
be pleased to issue interim direction against respondent no.1 and 2 to finalise the legal notice dated 25.7.2001 during the pendency of this Special Civil Application in the interest of justice;
be pleased to award exemplary and compensatory cost of Rs.10,000/- in favour of each petitioner no.1 to 6 to be recovered from personal account of salaries of respondent no.1 and 2 in the interest of justice;
(E) be pleased to pass appropriate orders which may be deemed fit in the interest of justice.
It appears that the learned Single Judge thought fit to reject the writ-application substantially on the ground of delay. According to the learned Single Judge, the appellant was appointed on 19th July 1984, and at the time of appointment, had willingly accepted the pay-scale of Rs.200-233. At the time of appointment, no grievance was raised by the appellant that since the post on which he was appointed was a Class-III post, the minimum pay-scale of Class-III should have been fixed as the salary. According to the learned Single Judge, the appellant and the others approached the High Court in the year 2001 and, therefore, after a delay of about 17 years the relief as prayed for for revision of the pay-scale with retrospective effect could not have been granted. The learned Single Judge also took the view that the pay-scale which was fixed at the time of appointment was in consonance with the pay-scale prevailing at the relevant point of time in accordance with the statutory rules.
According to the learned Single Judge it is for the employer to decide the pay-scale of a respective cadre and the Court should be slow to interfere in such matters. Accordingly, the learned Single Judge rejected the writ-application. Feeling aggrieved, the appellant has come up with this Appeal.
Mr.P.J.Mehta, the learned advocate appearing for the appellant vehemently submitted that the learned Single Judge committed an error in rejecting the writ-application on the ground of delay because it is not the case that his client raised the issue of pay-scale for the first time after 17 years directly before the Court. According to Mr.Mehta, his client had already taken this issue with the State Government and the State Government was being time and again reminded through various representations to consider the issue and take an appropriate decision. It is only when the State Government refused to pay heed to the representations of the appellant that as a measure of last resort petition had to be filed in the year 2001. Therefore, according to Mr.Mehta, there was no delay as such on the part of his client in approaching the Court.
Mr.Mehta also submitted that in fact there is no dispute that the post of Packer-cum-Sorter is a Class-III post. If that be so, then there was no reason for the State Government to fix the pay-scale of Rs.200-233 which was not even the minimum of the pay-scale of a Class-III employee. Mr.Mehta submitted that the pay-scale of Rs.200-233 was being provided to Class-IV employees.
Mr.Mehta invited our attention to the provisions of the Bombay Civil Services Rules, more particularly Rule 9(27) which explains 'Class-IV Service', Rule 9(35) which explains the term 'Ministerial Servant'.
Mr.Mehta also invited our attention to the provisions of the Gujarat Civil Services (General Conditions of Services) Rules, 2002, more particularly, Rule 9(8), which defines the term 'Cadre', Rule 9(11) which defines 'Class-IV Service', Rule 9(48) which defines the term 'Ministerial Employee', Rule 9(53) which defines the term 'Pay'.
Mr.Mehta submitted that according to Rule 161(1)(a) of the Bombay Civil Services Rules, the date of compulsory retirement of a Government servant other than Class-IV servant, is the date on which he attains the age of 58 years, whereas according to Rule 161(1)(b), a Government servant in Class-IV service attains superannuation at the age of 60 years.
Mr.Mehta placed strong reliance on a Division Bench decision of this Court delivered in the case of B.A.Mewada v/s. Director-Govt Printing and Stationery Department, Letters Patent Appeal No.95 of 2000 and other allied appeals decided on 17th February 2001, wherein the Division Bench took the view that the appellants of that case being Class-III employees were entitled to draw a pay-scale of Rs.3050-4590, more particularly, when other similarly situated Class-III persons in the State service were drawing the minimum pay-scale of Rs.3050-4590.
Mr.Mehta also invited our attention to the fact that the State Government had referred this issue about revision of pay-scale to the committee headed by Justice N.B.Patel (Retd.) and the committee also recommended the pay-scale of Rs.950-1500.
In such circumstances, Mr.Mehta prays that there being merit in this Appeal, the same deserves to be allowed and the relief as prayed for in the writ-application be accordingly granted.
On the other hand, Mr.Vandan Baxi, the learned AGP appearing for the State respondents, opposed this Appeal and submitted that the learned Single Judge rightly rejected the writ-application on the ground of delay and no error not to speak of any error of law could be said to have been committed by the learned Single Judge warranting any interference at the end of this Court.
Mr.Baxi submitted that in the year 1976 recruitment rules for appointment to the posts of Packer-cum-Sorter were framed by the State Government in exercise of powers conferred by the proviso to Article 309 of the Constitution of India.
The Photo Registry was affiliated with Photo-Litho Press before 1st September 1980. After 1st September 1980, the Photo Registry and the Photo-Litho Press were merged. The Photo Registry was put under the Revenue Department of the State Government. Thereafter, two posts for Packer-cum-Sorter were approved and the appointments were made.
According to Mr.Baxi, the post of Packer-cum-Sorter is a technical post. A Packer-cum-Sorter has to sort out the photo printer, tie them, fill and pack the bags. Such a function cannot be compared with the responsibility of a Clerk. According to Mr.Baxi, the power to fix a pay-scale is with the Government, and for that purpose, Pay Commissions are being appointed. The Pay Commission had fixed the pay-scale of Packer-cum-Sorter as Rs.200-233, which came to be revised in the year 1987 to Rs.775-1055 and later on with the revision of pay in the year 1988, the pay-scale was enhanced to Rs.2610-3540 with effect from 1st January 1996.
According to Mr.Baxi, the union of the Photo Registry had raised this grievance before the Pay Anomaly Committee and had demanded the pay-scale of Rs.3050-4590. However, no decision was taken by the Pay Anomaly Committee.
Mr.Baxi submitted that the State Government thought fit to refer the matter to the Pay Anomaly Committee headed by Justice N.B.Patel (Retd.). The committee observed that the appointment to the post of Packer-cum-Sorter is by way of direct recruitment and the educational qualifications required to hold the said post is 10th Standard pass. The Committee took note of the fact that the promotional post for a Packer-cum-Sorter is Junior Technical Assistant, and for the said post of Junior Technical Assistant also the educational qualification is 10th Standard pass. The Committee took into consideration the nature of the work performed by the Packer-cum-Sorter as well as the Junior Technical Assistant and recommended that both the posts should be merged and the benefit of the pay-scale of Rs.950-1500 be granted to the Packer-cum-Sorters.
Mr.Baxi submitted that the report of Justice N.B.Patel Committee was placed before a committee of three cabinet ministers and vide resolution dated 23rd November 2011, the committee of ministers thought fit not to give effect to the recommendations of Justice N.B.Patel Committee.
According to Mr.Baxi, since the appellant had accepted the pay-scale of Rs.200-233 at the time of his appointment in the year 1984, he should not be permitted now after all these years to raise this issue and the Appeal deserves to be dismissed there being no merit in the same.
Mr.Baxi placed strong reliance on the following decisions in support of his submissions :
Secretary, Finance Department and others v/s. West Bengal Registration Service Association and others, reported in 1993 Supp(1) SCC 153;
Shiba Kumar Dutta and others v/s. Union of India and others, reported in (1997)3 SCC 545;
Orissa University of Agriculture and Technology and another v/s. Manoj K.Mohanty, reported in (2003)5 SCC 188.
Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for our consideration in this Appeal is, whether the learned Single Judge committed any error in passing the order impugned.
The first question is, whether the learned Single Judge was justified in rejecting the writ-application on the alleged ground of delay.
In the aforesaid context, we may quote with profit a Five Judge Bench decision of the Supreme Court in the case of Ramchandra Shankar Deodhar and Others v/s. The State of Maharashtra and Others, reported in AIR 1974 SC 259.
The issue before the Supreme Court was one relating to promotion to the post of Deputy Collector. A preliminary objection was raised on behalf of the respondents that the petitioners were guilty of gross laches and delay in filing the petition. Such objection was raised as the divisional cadres of Mamlatdars/Tehsildars were created as far back as 1st November 1956 by the Government Resolution of that date, and the procedure for making promotion to the posts of Deputy Collector on the basis of divisional select lists, which was a necessary consequence of the creation of the divisional cadre of Mamlatdars/Tehsildars, had been in operation for a long number of years. It was pointed out by the respondents that there was a delay of more than ten to twelve years in filing the petition since the accrual of the cause of complaint and such delay was sufficient to disentitle the petitioners to any relief in a petition under Article 32 of the Constitution. The Supreme Court negatived such preliminary objection by observing as under:
...We do not think this contention should prevail with us. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law, but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the court must necessarily refuse to entertain the petition. Each case must depend on its own facts. The question, as pointed out by Hidayatullah, C.J., in Tilockchand Motichan v. H.B.Munshi, (1969) 2 SCR 824 = (AIR 1970 SC 898), is one discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose.
In a very recent pronouncement of the Supreme Court in the case of Tukaram Kana Joshi and Others v/s. M.I.D.C. and Others, reported in AIR 2013 SC 565, His Lordship Dr.B.S.Chauhan, J. reiterated the position of law on the issue of delay. What was assailed before the Supreme Court was the judgment and order passed by the High Court of Bombay by way of which the High Court had rejected the claim of the appellants for compensation due to them for the land taken by the respondent authorities, without resorting to any procedure prescribed by law. It was contended before the Court that the delay and laches on the part of the appellants had extinguished the right to put forth a claim. In such circumstances, His Lordship made the following observations in paragraphs 10, 11 and 12, which, in our opinion, are very apt and helps the petitioners.
10. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause of action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional imitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.
11. The question of condonation of delay is one of the discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and not to defeat it. The validity of the partys defence must be tried upon principles substantially equitable. (Vide: P.S.Sadasivaswamy v. State of T.N. AIR 1974 SC 2271; State of M.P. and Ors. V. Nandlal Jaiswal and Ors., AIR 1987 SC 251; and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors., (2009) 1 SCC 768: (AIR 2008 SC (Suppl) 824);) No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have infact emerged, by delay on the part of the petitioners. (Vide:Durga Prasad v. Chief Controller of Imports and Exports and Ors. AIR 1970 SC 769; Collector, Land Acquisition, Anantnag and Anr. V. Mst. Katiji and Ors., AIR 1987 SC 1353; Delhi Rohtas Light Railway Company Ltd. v. District Board, Bhojpur and Ors., AIR 1993 SC 802: (1992 AIR SCW 3181); Dayal Singh and Ors. v. Union of India and Ors. AIR 2003 SC 1140: (2003 AIR SCW 685); and Shankara Co-op. Housing Society Ltd. v. M.Prabhakar and Ors. AIR 2011 SC 2161 : (2011 AIR SCW 3033)) In the case before us, it appears that the appellant and other similarly situated persons holding the post of Packer-cum-Sorter had raised this issue before the State Government and number of representations were preferred, but there was no response at the end of the State Government. It also appears that the State Government was quite alive to this particular issue but failed to take any appropriate decision in the matter. It also appears from the materials on record that even after filing of the petition, the State Government continued to look into the matter, and for that purpose, thought fit to appoint a Pay Anomaly Committee headed by Justice N.B.Patel (Retd.) of this High Court.
Since the report submitted by the committee headed by Justice N.B.Patel was not placed on record, we thought fit vide our order dated 1st July 2013 to direct the State respondent to file a supplementary affidavit disclosing the report of the Committee and also the report of the subsequent committee consisting of Minister of Finance, Minister of Education and Minister of Agriculture. Thus, it could not be said that the appellant was guilty of delay and laches.
Following the principles of law explained by the Supreme Court in the above referred two decisions, we hold that the learned Single Judge committed an error in rejecting the writ-application on the ground of delay.
The second question that falls for our consideration is, whether the appellant has made out any case for grant of pay-scale of Rs.260-450, revised to Rs.950-1500 and further revised to Rs.3050-4590.
Before we proceed to answer the second question, it will be profitable to first look into the rules under which the appellant was appointed and the other relevant provisions of the Bombay Civil Services Rules and the Gujarat Civil Services (General Conditions of Services) Rules, 2002.
Industries Mines and Power Department Sachivalaya, Gandhinagar, Dated 26th Oct. 1976 NOTIFICATION No.GU/76/110/REC/1074/9690(i)/D.
In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India and read with the order by the President published in the Govt. of India, Ministry of Home Affairs, Order No.GSR/123(E) dated the 12th March 1976, the Governor of Gujarat hereby makes the following rules to provide for regulating recruitment to the post of Packer-cum-Sorter (Govt.Photo Litho Press and Photo Registry in Gujarat Subordinate Service, Class-III of Printing and Stationery Deptt. namely These rules may be called the Packer-cum-Sorter (Recruitment) Rules, 1976.
Appointment to the post of Packer-cum-Sorter shall be made by direct selection.
To be eligible for appointment by direct selection to the post mentioned at rule 2 candidate must be not more than 25 years of age.
b) have passed secondary school certificate examination or its equivalent examination recognised by the Govt. of Gujarat preferably with Physics and Chemistry or General Science provided that preference may be given to a candidate who possesses the experience of photographic work.
A selected candidate shall be required to pass an examination in Gujarati or Hindi or both in accordance with the rules prescribed by the State Govt. in that behalf from time to time.
By order and in the name of Governor of Gujarat.
The Bombay Civil Services Rules Rule 9(27) Class-IV Service means service performed by the Government servants included in Appendix III and service remunerated in a time scale of pay the maximum of which does not exceeds Rs.270 in the case of Government servants not so included.
Rule 9(27) referred to above was amended by the Bombay Civil Services (Gujarat fifth Amendment) Rules, 1971 with effect from 1st June 1967. The Notification reads as under :
FINANCE DEPARTMENT Notification Sachivalaya, Gandhinagar, 19th April 1971.
CONSTITUTION OF INDIA No.G.N.28/Pay/2470/1710-CH.
In exercise of the powers conferred by proviso to Article 309 of the Constitution of India, the Government of Gujarat hereby makes the following rules further to amend the Bombay Civil Services Rules, 1959, namely :-
These rules may be called the Bombay Civil Services (Gujarat fifth Amendment) Rules, 1971.
They shall be deemed to have come into force with effect on and from the 1st June 1967.
In the Bombay Civil Services Rules, 1959 in Rule 9 for clause (27) the following clause shall be substituted, namely :-
Class-IV Service means service performed by the Government servants included in Appendix III and service remunerated in a time scale of pay the maximum of which does not exceed Rs.130 in the case of Government servants not so included.
By order and in the name of the Governor of Gujarat, M.K.JOSHIPURA Under Secretary to Government.
Rule 9(35) Ministerial servant means a Government servants of a Class III Services whose duties are entirely clerical, and any other class of servants specially defined as such by Government.
The Gujarat Civil Services (General Conditions of Services) Rules, 2002 Rule 9(8) 'Cadre' means the strength of a service or a part of a service sanctioned as a separate unit.
Rule 9(11) 'Class-IV Service' means service performed by a Government employee on a post classified as Class-IV services and such other unclassified Non-gazetted posts the maximum of the scale of which does not exceed Rs.4000/-.
Rule 9(48) 'Ministerial Employee' means a Government employee of Class III services, whose duties are entirely clerical and any other class of employees specially declared as such by Government.
Rule 9(53) 'Pay' means the basic pay in the revised scales of pay prescribed under the Gujarat Civil Services (Revision of Pay) Rules, 1998 and includes stagnation increments.
The Gujarat Civil Services Classification and Recruitment (General) Rules, 1967 Rule 2(ii) defines 'Inferior Services', which means the Services and posts specified as such in sub-rule (3) of rule 4.
Rule 2(vi) defines 'Service', which means any service under the State Government included in the State Services or Subordinate Services.
Rule 2(viii) defines 'State Services', which means the services and posts specified as such in sub-rule (1) of rule 4.
Rule 2(ix) defines 'Subordinate Services', which means the services and posts specified as such in sub-rule (2) of rule 4.
It is a settled legal position that pay fixation is essentially an executive function ordinarily undertaken by an expert body like the Pay Commission whose recommendations are entitled to great weight though not binding on the Government and are not justiciable in a Court of law since the Court of law is not well equipped to take itself the task of job evaluation which is a complex exercise. But, that is not to say that the Court has no jurisdiction and the aggrieved employee has no remedy if he is unjustly treated by an arbitrary State action or inaction.
Indisputably, the post of Packer-cum-Sorter is a Class-III post and the Notification dated 26th October 1976 by which the rules to provide for regulating recruitment to the post of Packer-cum-Sorter were published makes it abundantly clear.
There are two well settled principles of service jurisprudence : (1) classification of posts has nothing to do with fixation of pay-scales; and (2) classification and prescribing pay-scales for different posts are two different and distinct functions.
If the principal contention raised on behalf of the appellant is tested on the touchstone of the aforenoted two principles, then we are afraid the submission deserves to be rejected outright.
Pay-scales are what are prescribed for each post by the Government which is very often done on the basis of a recommendations of a Pay Commission or a similar expert body. Classification of posts has nothing to do with fixation of pay-scales; it only classifies posts into several groups based upon the pay-scales already fixed. Classification and prescribing pay-scales for several posts are two different and distinct functions.
In Union of India v. P.V.Hariharan, reported in 1997(3) SCC 568, the Supreme Court had the occasion to consider a similar claim by Tool Room Assistants in the Fisheries department, whose pay-scale was initially Rs.85-128, revised to Rs.210-290. After the Fourth Pay Commission recommendations, they were given the revised pay-scale of Rs.800-1150. The Tribunal took the view that as the post hold held by them was included in Group C , they were entitled to the higher pay-scale of Rs.1150-2900. Reversing the said decision, the Supreme Court held as under :
We are unable to appreciate the reasoning or approach of the Tribunal. The pay-scale of Tool Room Assistant in IFP is Rs.800-1150.....Assuming that the said post was mentioned under Group C, it may be - or may not be - an error. What is material is that the classification cannot result in change of pay-scale from Rs.800-1150 to Rs. 1150-2900. This is simply unimaginable. pay-scales are what are prescribed for each post by the Government which is very often done on the basis of recommendations of a Pay Commission or a similar expert body. Classification of posts has nothing to do with fixation of pay-scales; it only classifies posts into several groups based upon the pay-scales already fixed Classification and prescribing pay-scales for several posts are two different and distinct functions. The Tribunal's order is, in our opinion, wholly unsustainable in law.
(Emphasis supplied) The principles explained by the Supreme Court in Hariharan (supra) were followed by the Supreme Court in a subsequent decision in the case of Kunnashada Muthukoya v. Administrator, U.T. of Lakshadweep and another, reported in AIR 2008 SC (Supp) 603. In that case, the appellant was promoted as a Lineman, a Group 'C' post, in the Lakshadweep Electricity Department, on 2.2.1985. The pay-scale of Lineman was initially Rs.85-2-95-3-110 which was revised to Rs.210-4-226-EB-4-250-EB-5-290. The pay-scale was further revised to Rs.800-15-1010-EB-20-1150 as per Central Civil Services (Revised Pay) Rules, 1986. The appellant of that case gave a representation dated 1st October 1994 requesting a higher pay-scale. He contended that as the post of Lineman was classified as a Group C post, he should be given the benefit of the minimum of the pay-scales prescribed for Group 'C' posts under the Revised Pay Rules, that is Rs.825-15-900-EB-20-1200. The representation was rejected by the respondent for grant of the higher pay-scale of Rs.825-1200. In the Office Memorandum, it was stated that though the post of Lineman was a Group 'C' post, the revised pay-scale applicable to the said post was that which corresponded to the pre-revision pay-scale of Rs.210-290 drawn by a Linemen and, therefore, the appellant was entitled only to the revised pay-scale of Rs.800-1150. It was also stated that the duties and responsibilities of a Linemen in the Electricity Department differed substantially from Linemen in other departments; that the Fourth Pay Commission had recommended the higher pay-scale of Rs.825-15-900-EB-20-1200 only for Linemen and Wiremen in the Telecommunication Department on the specific condition that their recruitment qualifications should be raised; and that the revised pay-scale of Rs.800-1150 given to the appellant was, therefore, in accordance with the Fourth Pay Commission's recommendations. Feeling aggrieved, the appellant approached the Central Administrative Tribunal. The Tribunal allowed the application and quashed the Office Memorandum dated 9th August 1995. The Tribunal held that as the appellant was in a Group C post, he was entitled to the minimum pay-scale applicable to Group C posts, after revision of pay-scales; that under the under the CCS (Revised Pay) Rules, 1986, the pay-scale of Rs.800-1150 was a Group 'D' pay-scale and the lowest pay-scale applicable to Group 'C' posts was Rs.825-1200; and that, therefore, the appellant was entitled to the revised pay-scale of Rs.825-1200 from 1st January 1986 with all consequential benefits. The respondents challenged the said order in a writ petition before the High Court of Kerala. The High Court allowed the writ petition vide order dated 27th January 2000 following the decision of Hariharan (supra). The High Court held that as the pay-scale applicable to the appellant before the pay revision was Rs.210-290, he was entitled only to the corresponding revised pay-scale of Rs.800-1150 under the Revised Pay Rules, and that he was not entitled to a higher pay-scale. The said order is challenged before the Supreme Court by Special Leave. The only question before the Supreme Court was, whether the appellant was entitled to the benefit of higher pay-scale of Rs.825-1200 as he was holding a Group 'C' post. The Supreme Court took notice of its earlier decision in the case of Hariharan (supra) and confirmed the judgment of the High Court by observing as under :
5. The learned counsel for the appellant fairly conceded that if the ratio of Hariharan is applied, the appellant's claim is liable to be rejected. But he contended that the decision in Hariharan should be considered as having been rendered per incuriam, as it ignores Rule 5 of the Revised Pay Rules. Relying on the decisions of this Court in Nirmal Jeet Kaur v. State of M.P. [2004 (7) SCC 558] and Central Board of Dawoodi Bohra Community v. State of Maharashtra [2005 (2) SCC 673], he submitted that a decision rendered per incuriam is not a binding precedent. According to the appellant, having regard to Rule 5 of the Revised Pay Rules, the revision of pay of a government servant should be with reference to the class of post held by him and not with reference to the pay-scale earlier applicable to him. He therefore contended that as the appellant held a Group 'C' post, the pay-scale applicable to Group 'C' government servants should be extended to him.
6. T he principles enunciated in Hariharan is that 'classification of posts has nothing to do with fixation of pay-scales' and "classification and prescribing pay-scales for different posts are two different and distinct functions". These are well settled principles of service jurisprudence. The question therefore is whether Rule 5 of CCS (Revised Pay) Rules, 1986 carves out any exception to the said general principles of service law, or lays down a different principle, and if so whether Rule 5 had been wrongly ignored.
7. The Revised Pay Rules were made to implement the recommendations made by the Fourth Pay Commission. A brief reference to the relevant provisions of the said Rules will be necessary to consider the appellant's contention.
7.1 Sub-Rules (2), (3), and (5) of Rule 3 define the terms 'Existing Scale', 'Present Scale' and 'Revised Scale'. 'Existing Scale' in relation to a Government servant means the present scale applicable to the post held by the Government servant as on 1.1.1986.
'Present Scale' in relation to any post specified in Column 2 of the First Schedule, means the scale of pay specified against that post in Column 3 thereof. 'Revised Scale' in relation to any post specified in column (2) of the First Schedule means the scale of pay specified against that post in column (4) thereof unless a different revised scale is notified separately for that post. Rule 4 provides that from the date of commencement of the revised pay rules (1.1.1986), the scale of pay of every post specified in column (2) of the First Schedule shall be as specified against it in column (4) thereof.
7.2 Rule 5 relied on by the appellant, relating to drawal of pay in the revised scales is extracted below :
Drawal of pay in the revised scales : Save as otherwise provided in these rules, a Government servant shall draw pay in the revised scale applicable to the post to which he is appointed.
Provided that a government servant may elect to continue to draw pay in the existing scale until the date on which he earns his next or any subsequent increment in the existing scale or until he vacates his post or ceases to draw pay in that scale.
Explanations 1, 2, 3 : x x x x x (omitted as not relevant)"
Rule 6 provides how the option under the proviso to Rule 5 should be exercised.
7.3 The First Schedule to the Revised Pay Rules consists of two parts. Part A relates to "revised scales for posts carrying present scales in Groups D, C and B except posts for which different revised scales are notified separately." Part B relates to "revised scales of pay for certain other categories of staff." The relevant entries in the First Schedule are extracted below :
THE FIRST SCHEDULE (See Rules 3 and 4) - PART A (Revised scales for posts carrying present scales in Group D, C and B except posts for which different revised scales are notified separately) Sl.
No. (1) Post(2) Present scale (3) Revised scale (4) GROUP 'D' xxxxx
3.All posts carrying present scales specified in Column 3. (a) x x x x x 800-15-1010-EB-20-1150
(b) x x x x x
(c) 210-4-226-EB-4-250-EB-5-290 GROUPS 'C' AND 'B'
4.All posts carrying present scales specified in column 3. 225-5-260-6-290-EB-6-308 825-15-900-EB-20-1100 xxxxx
8. The Central Government has issued an Explanatory Memorandum to understand and implement the CCS (Revised Pay) Rules, 1986. The explanation given therein in regard to Rule 5 is extracted below :
"Re : Rule 5. The intention is that all Government servants should be brought over to the revised scales except those who elect to draw pay in the existing scales. Those who exercise the option to continue on the existing scales of pay will continue to draw the dearness pay, dearness allowance, ad hoc dearness allowance and interim reliefs at the rates in force on the 1st January, 1986 and the dearness pay will count towards house rent and compensatory allowances, emoluments for pension, etc. to the extent it so counted on the said date. If a Government servant is holding a permanent post in a substantive capacity and officiating in a higher post or would have officiated in one or more posts but for his being on deputation etc., he has the option to retain the existing scale only in respect of one scale. Such a Government servant may retain the existing scale applicable to a permanent post or any one of the officiating posts. In respect of the remaining posts he will necessarily have to be brought over to the revised scales."
9.The position that emerged from a combined reading of the provisions of the Revised Pay Rules in the context of the question raised by the appellant was as follows :
(i) As from 1.1.1986, the scale of pay of every post specified in column (2) of the First Schedule was as specified against it in column (4) of the First Schedule.
(ii) Part A of the First Schedule did not individually name the several posts for which the revised pay-scales were prescribed. It grouped the posts, with reference to the existing (pre-revision) pay-scale and prescribed a single revised pay-scale. Therefore in regard to posts covered by Part A (that is posts excluding those specified in Part B) the entitlement of a government servant to the revised scale of pay was with reference to the existing scale of pay (that is pre-revised scale applicable to him as on 1.1.1986 when the revised scales of pay came into effect). All posts carrying a particular pay-scale before the revision, were given the corresponding revised pay-scale shown in the First Schedule. The pay revision was thus with reference to the existing pay-scale drawn by the government servant and not with reference to the 'post' held by him.
(iii) Part B of First Schedule, on the other hand, specifically described certain posts, as for example, Junior Engineer, Technical Supervisor etc., while prescribing the revised pay-scales. In regard to posts described in Part B, both the 'post' and the existing scale of pay became relevant for finding out the corresponding revised scale of pay.
(iv) The Revised Pay Rules did not change the classification of posts. The fact that the First Schedule classified the pay-scales for convenience under the headings 'Group D' and 'Groups C and B' did not mean that a government servant working in Group 'C' but whose existing scale of pay was shown under the heading Group 'D', could ignore his existing scale and claim the benefit of a revised scale corresponding to some other higher pre-revised scale of pay.
(v) The object and intent of Rule 5 was to bring all government servants covered by the Revised Pay Rules to the revised scales except those who elected to continue to drawing pay in the existing scales.
10. The contention of appellant that pay revision should be with reference to post held and not existing pay-scales, if accepted would have lead to confusion, uncertainty and inconsistency. Its effect, in the case of appellant, would have been to first upgrade the existing pay-scale from Rs.210-4-226-EB-4-250-EB-5-290 to Rs.225-5-260-6-290-EB-6-308 and then grant the revised pay-scale corresponding to such upgraded higher pay-scale with effect from 1.1.1986. Rule 4 read with First Schedule made it clear that the government servant was only entitled to the revised pay-scale corresponding to his existing pay-scale (and not any other revised pay-scale corresponding to some higher pre-revised scale).Rule 5 does not mean that if a government servant was in a post classified as a Group 'C' post with an existing pay-scale shown in the First Schedule as a Group 'D' pay-scale, the government servant would get the pay-scale applicable to a Group 'C' post. In fact there are several revised pay-scales in Part A of the First Schedule for Group 'C' posts. If the contention of the appellant was to be accepted, and the revised pay-scale to be given to him was to be delinked from the existing pay-scale, then he could have chosen any of the several revised pay-scales corresponding to pay-scales shown as Group 'C' scales (that is Rs.825-1200 or Rs.950-1400 or 950-1500 or 975-1540 etc.) as he did not fit into any of the existing pay-scales of Group 'C'. Obviously such a course was clearly impermissible. All that Rule 5 provided was that except those who exercised option to continue to draw pay in the existing pay-scale, others should draw their pay only in the revised pay-scale corresponding to his existing pay-scale and that he could not draw any other pay-scale. Further a person who fell under part A of First Schedule could not draw the pay provided in Part B of First Schedule and vice versa.
11. It is also of some relevance to note that Rule 5 in the Revised Pay Rules is not a new provision, but same as Rule 5 of the Central Civil Services (Revised Pay) Rules, 1973 relating to the earlier pay revision. The said rule had never been interpreted in the manner suggested by the Appellant. Be that as it may.
12. For the reasons aforesaid, the contention that Hariharan (supra) ignored Rule 5 and should therefore be considered as per incuriam is untenable. The said contention is rejected. The appeal is therefore dismissed as having no merit.
In our view, the decision of the Supreme Court in Kunnashada Muthukoya (supra) clinches the issue, and applying the ratio of the same to the facts of the present case, we have no hesitation in rejecting the principal contention of Mr.Mehta that his client was entitled to draw the minimum of the pay-scale prescribed in Class-III at the relevant point of time i.e. at the time of his appointment to the post of Packer-cum-Sorter in the year 1984.
Although Mr.Mehta very strenuously contended before us that the decision of the Supreme Court in the case of Kunnashada Muthukoya (supra) has no application because in the case before the Supreme Court, the appellant was promoted as a Lineman which was a Group C post and having regard to the peculiar facts of the case, the Supreme Court declined to grant the benefit of the minimum of the pay-scales prescribed for Group C posts under the revised Pay Rules, whereas his client was appointed from the inception in Class-III and, therefore, was entitled to draw the minimum of the pay-scale fixed in Class-III, we are not impressed by such submission of Mr.Mehta. It is no doubt true that in Kunnashada Muthukoya (supra), the claim was made on the appellant being promoted, but that will not make the principles explained by the Supreme Court inapplicable to the case in hand. What is to be followed is the principles explained by the Supreme Court. We have applied the principles to the facts of the present case.
At this stage, it may not be out of place to state that according to the Gujarat Civil Services (Revision of Pay) Rules, 1975, the position of some of the posts was as under :
Designation Present Scale Revised Scale Class 1 Head Packer 125-200 260-350 2 Technical Assistant 125-200 260-430 3 Packer 100-110 200-233 4 Packer-cum-Sorter 100-110 200-233 The range of pay-scale in Class-III :
A) The range of pay-scales for non-technical posts (as shown on page
114) in Class-III in Photo Registry Department is as follows :
Designation pay-scale as per Desai Pay Commission Class 3 Head Packer 425-700 III 4 Supervisor 380-640 III 5 Photoregistrar 380-640 III 6 SKFR 330-560 III 7 Junior Clerk 260-400 III B) The range of pay-scales for technical posts (as shown on page 114) in Class-III in Photo Registry Department is as follows :
Designation pay-scale as per Desai Pay Commission Class 13 Foreman 380-640 III 14 Head Enlarger Operator 380-600 III 15 Enlarger Operator 350-560 III 16 Senior Technical Assistant 260-350 III 17 Junior Technical Assistant 210-270 III 18 Packer-cum-Sorter 200-233 III It may be noted that the pay-scale of a Head Packer according to the R.O.P. Rules, 1975, was Rs.260-350 and the pay-scale of a Technical Assistant in the Directorate of Government Printing and Stationery was Rs.260-430 according to the R.O.P. Rules, 1975, which, according to the State respondent is a promotional post for Packer-cum-Sorter. If the Head Packer and the Technical Assistants were drawing pay-scale of Rs.260-350 and Rs.260-430 respectively, then we are unable to appreciate the contention of the appellant as to on what basis he is claiming pay-scale of Rs.260-450 from the date of his appointment i.e. 1984. Even according to the R.O.P. Rules, 1998, which came into effect from 1st January 1996, the scale of Junior Technical Assistant was Rs.2650-4000, whereas that of Junior Clerk, Clerk-cum-Gujarati Typist, Typist was Rs.3050-4590 i.e. the pay-scale which is being demanded by the appellant, whereas according to the R.O.P. Rules, 1998, the pay-scale of Packer-cum-Sorter was revised to Rs.2610-3540 which was at par with Naik and Daftarbandg.
We shall now deal with the second submission of Mr.Mehta as regards the recommendations by the Pay Anomaly Committee headed by Justice N.B.Patel (Retd.). The free English translation of the opinion expressed by the Committee reads as under :
It was represented that the pay-scale of the cadre of Packer-cum-Sorter should be enhanced from Rs.775-1025 to Rs.950-1500 with effect from 1st January 1996. In support of such demand, it was represented that the appointment to the post of Packer-cum-Sorter is by way of direct recruitment. From 1985, the necessary educational qualification to hold the post of Packer-cum-Sorter is S.S.C. The promotional post is one of Junior Technical Assistant and the educational qualification required to hold the post of Junior Technical Assistant is also S.S.C. Taking into consideration the duties, functions, responsibilities and the educational qualifications of Packer-cum-Sorter and Junior Technical Assistant, it is recommended that both the posts should be merged and the pay-scale of Rs.950-1500 be provided.
What is discernible from the recommendations of the Pay Anomaly Committee is :
that the appointment to the post of Packer-cum-Sorter is by way of direct recruitment;
the requisite educational qualification to hold the post of Packer-cum-Sorter is S.S.C.;
the promotional post is one of Junior Technical Assistant;
the educational qualification required to hold the post of Junior Technical Assistant is also S.S.C.; and the duties, functions, responsibilities of Packer-cum-Sorter and Junior Technical Assistant are the same.
According to Mr.Mehta, in spite of such clear recommendations by the Pay Anomaly Committee, the Government thought fit to constitute a committee of three cabinet rank ministers to consider the recommendations of the Pay Anomaly Committee and the committee of the three cabinet rank ministers, without any justification, brushed aside the recommendations of the Pay Anomaly Committee and decided not to give effect to the recommendations.
It appears from the materials on record that the committee of ministers took into consideration the following aspects :
the pay-scale of Packer-cum-Sorter from 1st January 1986 is Rs.775-1025 and from 1st January 1996 is Rs.2610-3500;
the demand is for Rs.950-1500 from 1st January 1986 and Rs.3050-4590 from 1st January 1996;
in the report of the Pay Anomaly Committee, the reason for such a demand has not been stated;
the Pay Anomaly Committee has recommended that the posts of Packer-cum-Sorter and Junior Technical Assistant should be merged and from 1st January 1986 salary in the pay-scale of Rs.950-1500 and from 1st January 1996 salary in the pay-scale of Rs.3050-4590 has been recommended;
the Pay Anomaly Committee has not prescribed any particular name of the post after recommending merger of the two posts Packer-cum-Sorter with Technical Assistant and has also not recommended as regards the date of its implementation;
the principles on which the Pay Anomaly Committee has made such recommendation is not acceptable as the same is a conditional recommendation and the Pay Anomaly Committee has travelled beyond its scope of adjudication;
only because the educational qualification for both the posts is S.S.C., the pay-scale of Rs.950-1500 should not be granted.
It is now well settled that the Court, in exercise of power under Article 226 of the Constitution of India, should not interfere with the pay-scales without proper reasons and should be conscious of the fact that fixation of pay is not the function of the Court, it is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay-scale of a category has a cascading effect. Several other categories similarly situated, as well as those situated above and below, would put forward their claims on the basis of such a change. Interfering with the prescribed pay-scales is a serious matter. However, the question is, whether the Government was justified in not accepting the recommendations of the Pay Anomaly Committee, and to what extent such recommendations are binding to the State Government.
Pay Commissions are constituted for evaluating the duties and functions of the employees and the nature thereof vis-a-vis the educational qualifications required therefor. Although the Pay Commission is considered to be an expert body, the State in its wisdom and in furtherance of a valid policy decision may, or may not accept its recommendations. The State in exercise of its jurisdiction conferred upon it by the proviso appended to Article 309 of the Constitution of India can unilaterally make or amend the conditions of service of its employees by framing appropriate rules. It may be true that when recommendations are made by a Pay Commission, evaluation of job must be held to have been made but the same by itself may not be a ground to enforce the recommendations by issuing a writ of or in the nature of mandamus although the State did not accept the same for certain valid reasons. (see Chhattisgarh Rural Agriculture Extension Officers Association v. State of M.P. and others (2004)4 SCC 646).
The aforesaid takes us to the Division Bench decision of this Court in the case of B.A.Mewada (supra), on which strong reliance has been placed by Mr.Mehta in support of his submissions.
Having gone through the said decision, we are of the opinion that if we apply the ratio of the same mechanically, then we will be taking a view contrary to the one taken by the Supreme Court in the case of Kunnashada Muthukoya (supra). It is well established that a judgment is a precedent for what it decides and not what may appear to logically flow from it. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before the Court. It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment. However, since strong reliance has been placed on the same, we have thought fit to look into the same in detail.
In that case, the appellants before the Court were also employees working in the Directorate of Government Printing and Stationery Department, Government of Gujarat, in the capacity of Packers and Packing Checkers. The cause of action for such employees to come to this High Court was on account of a Government Order dated 18th December 1997, by which it was declared that the posts of Packer and Packing Checker would be a Class-III Government service and, therefore, the employees belonging to such cadre would retire from Government service on completion of 58 years.
The original petitioners felt aggrieved by the said order dated 18th December 1997 and, therefore, they preferred Appeals before the Gujarat Civil Services Tribunal at Gandhinagar. The Tribunal thought fit to set-aside the order dated 18th December 1997. The Tribunal also directed the Government to implement its order immediately as one of the employees was on the verge of completion of 58 years and the Tribunal directed that he should not be made to retire at 58 years. On this issue, the matter came before the High Court and the High Court took the view that it was within the powers of the State Government to frame rules so as to apply to the existing employees also. Thus, the challenge so far as the retirement age was concerned, was negatived by the High Court since the employees were treated as Class-III employees and the retirement age is 58 years.
However, the Division Bench noticed that the pay-scale of the employees in 1986 was Rs.775-1025 which was revised to Rs.800-1150 with effect from 1992 and thereafter to Rs.2650-4000 with effect from 1st January 1996. As against that, the pay-scale available to Class-III service was on a higher side before 1996 and the minimum pay-scale in Class-III service was Rs.950-1400 and under the R.O.P. Rules 1998, the minimum pay-scale in Class-III service was Rs.3050-4590. The Bench also noted that there was no dispute as regards the said fact. In such circumstances, the Division Bench observed as under :
18. This shows that while extending the benefit of pay-scales the appellants-employees have not been properly considered and they have not been properly placed in the appropriate minimum pay-scales applicable to Class III service in Government. When other Class III persons have been getting minimum pay-scales of Rs.3050-4590/- under the R.O.P. Rules 1998, which are brought into force w.e.f. 1.1.1996, then in that event we fail to understand as to why different treatment has been extended to the appellants-employees in extending to them the pay-scales of Rs.2650-4000/- w.e.f. 1.1.1996. The learned A.G.P. supporting the judgment of the learned single Judge before us could not explain as to why different treatment has been extended to the appellants-employees and as to why minimum pay-scale available to other Class III service in the state have not been made applicable to these appellants-employees. We find substance in this point since, appellants-employees are now placed in Class III service w.e.f. the date of the aforesaid order. It was the duty of the respondents to extend benefit of atleast the minimum pay-scales available to other class III service in the state. This has not been done and no reasonable explanation has been set out by the respondents either in the affidavit or otherwise. In other words, the respondents have not been able to show as to why the aforesaid different treatment has been extended to the appellants-employees so as to adversely effect their pay-scales. It has been submitted at the bar that there is no pay-scale available to Class III service in the State, below the aforesaid pay-scales of Rs.3050-4590/-. When the minimum pay-scales in Class III service throughout the state is Rs.3050-4590/-, then there is no reason to deprive the appellants-employees from the getting said minimum pay-scales atleast from the date on which they have been placed in Class III service. Therefore we are of the view that when the respondents are State Governments they are required to use equal yardstick for all its employees. Therefore while extending minimum pay-scales of Rs.3050-4590/- under the R.O.P. Rules, 1998 to remaining Class III service in the state, the respondents could not legally and constitutionally deny the said pay-scales to the appellants-employees on and from the date on which they have been placed in Class III service. The respondents could not discriminate between the employees in Class III service in one department and similarly situated employees in Class III service in another department, unless the respondents come out with a reasonable explanation for different treatment to be extended to the different employees in different departments in Class III service. As said above, the respondents have not explained as to why different treatment has been extended to the appellants-employees. Such an explanation is not found from the affidavit nor it is shown from the documents. Even during the course of arguments. learned A.G.P. Mr.V.M.Pancholi was not in a position to explain the aforesaid different treatment extended to the appellants-employees. Therefore we are of the view that discriminatory treatment has been extended to the similarly situated Class III employees, i.e. the appellants-employees. This action of the respondents would clearly be hit by Article 14 and 16 of the Constitution of India. We are of a very clear opinion that the respondents, being State, is not expected to use different yardstick with respect to similarly situated persons in different departments in the state service.
19. Appellants-employees stand in Class III service, other similarly situated Class III persons are also in state service. Those other persons are getting minimum pay-scales of Rs.3050-4590/-. In the same way the appellants-employees also being in Class III service are entitled to the said pay-scales of Rs.3050-4590/- w.e.f 1.1.1996 or w.e.f. the date on which they are placed in Class III service. It appears from the record that the rules have been framed on 30.5.1996. However, the appellants-employees have been placed in Class III service w.e.f. 18.12.1997 which is under challenge before this court also. Therefore, the appellants-employees are entitled to get pay-scales of Rs.3050-4590/- w.e.f. 18.12.1997.
The Division Bench also took notice of the fact that since the employees had not been placed in Class-III service with effect from 1st January 1986, there was no reason to direct the respondents to apply pay-scale of Class-III service with effect from 1st January 1986. The Bench observed that when the State respondents had decided to treat the employees in Class-III service with effect from a particular date, the Court should not compel the respondents either to continue them in Class-IV service or to extend the benefit of pay-scale of Class-III service with effect from 1st January 1996. The Bench proceeded to observe that at the same time the employees should not be deprived of the minimum pay-scale of Class-III service with effect from the date on which they were placed in Class-III service.
The Division Bench finally concluded the Appeals observing thus in paragraph 22 :
22. In above view of the matter we direct that the respondents shall extend the pay-scales of Rs.3050-4590/- to the appellants-employees w.e.f 18.12.1997. We further direct the respondents to fix the pay of the appellants-employees in accordance with the R.O.P. Rules, 1998 in the aforesaid pay-scales and then to pay to the appellants-employees on proper calculations after fixation of their salary and allowance as aforesaid. We further direct the respondents that if any amount is to be credited in Provident Fund Account as per the policy decision of the respondents then the said amount shall be credited in Provident Fund Account of the appellants-employees. At the same time if any amount is required to be paid in cash then the respondents shall pay the said amount in cash to the appellants-employees. We further direct that the respondents shall complete the aforesaid process of calculations, credit in Provident Fund Account and payment in cash after due and proper calculation within 3 months from the date of receipt of this order. We therefore allow these Letters Patent Appeals of the appellants above named to the extent indicated above. The rest of the prayers in these Letters Patent Appeals of the appellants-employees for directing the respondents to continue them in Class IV service and to extend the benefits of pay-scales of Class III service to them w.e.f. 1.1.1986 stand rejected. Having regard to the facts and circumstances of the case, there shall be no order as to costs in these appeal.
Mr.Mehta has placed strong reliance on the following observations made by the Division Bench :
When other Class-III persons have been getting minimum pay-scales of Rs.3050-4590 under the R.O.P. Rules 1998, which are brought into force w.e.f. 1.1.1996, then in that event we fail to understand as to why different treatment has been extended to the appellants-employees in extending to them the pay-scales of Rs.2650-4000 w.e.f. 1.1.1996.
According to Mr.Mehta, the case of his client stands on a better footing than the persons before the Division Bench because in the case before the Division Bench, the post was brought in the category of Class-III service only in 1996 and the court thought fit to hold that they were entitled to the minimum pay-scale according to R.O.P. Rules 1998 which was brought into force w.e.f. 1st January 1996, whereas so far as the appellant herein is concerned, he was appointed way back in 1984 in Class-III itself.
We are afraid, we are unable to subscribe with due respect to the view taken by the Division Bench as the two well settled principles of service jurisprudence aforenoted and explained by the Supreme Court in Kunnashada Muthukoya (supra) were not taken into consideration.
We shall now look into the three decisions on which strong reliance has been placed by Mr.Baxi, the learned AGP appearing for the State.
In Secretary, Finance Department (supra), the Sub-Registrars of West Bengal Registration Service claimed parity in pay-scale with Munisffs on the basis that the Sub-Registrars conferred Gazetted status. Their case was that their service was designated as State service and their entry into service was made through the competitive examination with the minimum educational qualification as a Graduate. It was represented by them that although pursuant to the recommendations of the Pay Committee the pay-scale underwent an upward revision, the Sub-Registrars were placed in the revised scale of Rs.200-400, which corresponded to the old scale of Rs.100-250 even though the minimum scale for the State service employees was raised to Rs.250-550 under the ROPA Rules, 1961. Thereafter, the body examined the grievance and after evaluating the job requirements, recruitment standard and responsibilities attached to the post belonging to the said service, recommended a scale of Rs.425-825 for Sub-Registrars. Such recommendations did not find favour with the State Government since under the ROPA Rules, 1970, the pay-scale for the post of Sub-Registrar was fixed at Rs.300-600 only. It appears that feeling aggrieved by the decision of the State Government, the West Bengal Registration Service Association filed a Writ Petition No.1993 of 1987 in the High Court of Calcutta for a mandamus to award them the pay-scale No.17 of Rs.660-1600. Feeling aggrieved, the State Government preferred SLP before the Supreme Court. The Supreme Court in the facts of that case observed that it was well settled that equation of posts and determination of pay-scales was the primary function of the executive and not the judiciary and, therefore, ordinarily Courts would not enter upon the task of job evaluation which ordinarily is left to the expert body like the Pay Commission, etc. However, the Court observed that it should not be construed that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by an arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task. The Court thereafter took into consideration the failure on the part of the High Court to evaluate the difference in the nature of duties and the responsibilities of a Munsiff and a Sub-Registrar. The Court observed that the duties and responsibilities of a Munsiff and a Judicial Magistrate are far more onerous than those of a Sub-Registrar. It was found by the Supreme Court that the Sub-Registrar's duties were relatively simple namely to receive, examine and register the document whereas the duties of a Judicial Officer at the floor level are to hear cases, examine witnesses, interpret and construe different laws, hear oral arguments and deliver reasoned judgments.
The aforenoted decision of the Supreme Court fortifies the view we have taken in this Appeal.
In Shiba Kumar Dutta (supra), the Government had decided to abolish two different categories, Fitters (T&G) and Jig Borers and in their place, created a new category of Fitters only. The petitioners of that case who were Fitters (T&G) were aggrieved by such decision because, according to them, they were earlier drawing higher pay-scale than the Fitters and subsequently they had been brought down to the category of Fitters. The matter was examined by the Third Central Pay Commission which fixed the pay-scales. The Expert Classification Committee and Anomalies Removal Committee also looked into the matter and made a distinction. The Government subsequently took decision to fuse different categories into one.
It appears that the issue was carried before the Administrative Tribunal, Calcutta, and against the order of the Administrative Tribunal, the matter went to the Supreme Court. In the facts of that case, the Supreme Court held that the nomenclature and fitment was one of the executive policy of the Government. Unless the action was arbitrary or there was invidious discrimination between persons similarly situated, doing same type of work, it would be difficult for the courts to go into the question of equation of posts or fitment into a particular scale of pay. Such decisions must be left to be decided by Expert Committees and the Government. The courts should not go into them and evaluate the job criteria and scales of pay prescribed for each category.
The ratio of Shiba Kumar Dutta (supra) also fortifies the view we have taken in this matter.
In Orissa University of Agriculture and Technology (supra), the respondent of that case was appointed as a Typist against the vacancy of a Junior Assistant on a consolidated salary of Rs.530=00 per month temporarily till further orders.
It was the case of the respondent that although in the appointment order his post was mentioned as Typist, he was working as a Junior Assistant in the Examination Section of the College of Engineering and Technology, that though he was serving for more than five years, his service was not regularised, instead some of his juniors had been absorbed by the appellants. By order dated 26th March 1996, the respondent was appointed for a period of 59 days with effect from 27th March 1996 to 24th May 1996 with a break of one day. In such circumstances, the respondent filed a writ petition in the High Court seeking regularisation of his service as a Junior Assistant with effect from 21st July 1990. On the basis of such facts, the High Court directed the appellants to take appropriate decision to consider the question of appointing the respondent on regular basis and also to pay the respondent regular scale of pay admissible to Junior Assistant. Aggrieved by such order of the High Court, the appellants filed SLP before the Supreme Court. In the facts of that case, the Supreme Court took the view that the High Court before directing to give regular pay-scale to the respondent with effect from September 1997 on the principles of 'equal pay for equal work' had not examined the pleadings and facts of the case in order to appreciate, whether the respondent satisfies the relevant requirements such as the nature of the work performed by him as compared to the nature of the work performed by the regularly appointed Junior Assistants, the qualifications, responsibilities, etc. The Court observed that in the absence of necessary averments and materials placed on record, there was no scope for the High Court to issue such directions. The burden was on the respondent to establish that he had a right to equal pay on the principles of 'equal pay for equal work' relying on Article 14 of the Constitution of India and that having not been done, the respondent was not entitled to the direction to get regular pay-scale with effect from September 1997.
The aforenoted decision of the Supreme Court definitely supports the view we have taken in the present matter.
We shall now deal with the two decisions relied upon by Mr.Mehta in support of his submissions.
Mr.Mehta has relied on the decision of the Supreme Court in the case of Secretary, Finance Department and others v. West Bengal Registration Service Association and others, reported in AIR 1992 1203. This very decision has been relied upon by Mr.Baxi, the learned AGP, in support of his submissions. We have discussed this judgment at length and are of the view that it helps the State rather than the appellant. We are unable to appreciate as to how this decision helps the appellant in any manner.
In State of Tamil Nadu and another v. M.R.Alagappan and others, reported in (1997)4 SCC 401, the respondents before the Supreme Court were working as Deputy Agricultural Officers in the Tamil Nadu Agricultural Extension Subordinate Service under the Agriculture Department of the State. They were promotee officers in the pay-scale of Rs.1600-2660. They claimed parity in the pay-scales with directly recruited Agricultural Officers who belonged to the Tamil Nadu Agricultural Extension Service, whose pay-scale was Rs.1640-2900 which was increased to Rs.1820-3200. Although there was considerable resemblance between the duties and responsibilities of the Deputy Agricultural Officers and the Agricultural Officers, yet there were substantial difference also between the two categories. While allowing the appeal filed by the State of Tamil Nadu, the Supreme Court observed in para 13 as under :
It may be that in certain circumstances, even the task of drawing samples is also being entrusted to Deputy Agricultural Officers, yet the special quality of work which the directly recruited Agricultural Officers have to put in substantially differs from the quality of work which can be entrusted to Deputy Agricultural Officers like the contesting respondents. It is impossible to hold that the Deputy Agricultural Officers like the contesting respondents are required to be given the same pay scale as Agricultural Officers. This is because they do not form similar class of employees even though they may be substantially discharging the same type of duties and their place of work may be interchangeable. In view of the distinguishing features between the two groups of employees and especially in the light of the further fact that they form two separate cadres of gazetted and non-gazetted officers governed by different sets of service rules which in turn require maintenance of separate seniority lists, it is not possible to uphold the contention of contesting respondents that by applying doctrine of equal pay for equal work, the pay scale available to gazetted employees like Agricultural Officers must necessarily be made available to non-gazetted employees like Deputy Agricultural Officers on the pain of Articles 14 and 16 of the Constitution.
We have considered the decision of the Supreme Court and are of the opinion that it in no manner helps the appellant. On the contrary, the decision helps the State Government because it is a case of the State Government that the pay-scale claimed by the appellant was a scale initially attached to the post of a Clerk and there can be no comparison with the duties, functions and responsibilities of a Clerk with that of a Packer-cum-Sorter. From the materials on record, it is evident that from the inception the Packer-cum-Sorters were placed in Class-III under the Gujarat Subordinate Services and the said post was termed as a technical post considering the nature of the job to be performed. The pay-scale of Rs.200-233 was prescribed for the said post under the Gujarat Civil Services (Revision of Pay) First Amendment Rules, 1964.
We are in complete agreement with the vociferous submission of Mr.Baxi, the learned AGP, that the pay-scale is prescribed under the Rules and any benefit granted to the appellant only on the basis of he being a Class-III would not only the disturb the entire hierarchy of different posts in the department but would also bring chaos in the administration.
For the foregoing reasons, we are of the opinion that the decision of the learned Single Judge to reject the petition was correct and we do not find any reason to interfere with such decision.
For the foregoing reasons, the Appeal fails and is hereby dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.
In view of the disposal of the main matter, the connected Civil Application has become infructuous and is disposed of accordingly.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 45 of 45