Calcutta High Court (Appellete Side)
Dr. Sourendra Nath Das & Ors vs State Of West Bengal & Ors on 9 May, 2024
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IN THE HIGH COURT AT CALCUTTA
(CONSTITUTIONAL WRIT JURISDICTION)
APPELLATE SIDE
Present:
The Hon'ble Justice Partha Sarathi Chatterjee
WPA 19219 of 2019
Dr. Sourendra Nath Das & Ors.
-Vs.-
State of West Bengal & Ors.
For the Petitioner : Mr. Sakti Pada Jana.
For the State : Mr. Arjun Ray Mukherjee,
Mr. Joyjeev Medhi.
Heard on : 09.04.2024
Judgment on : 09.05.2024
Partha Sarathi Chatterjee, J.:-
1. Questioning the justifiability of the reasoned order dated 11.4.2019
issued by the Additional Chief Secretary, Finance Department,
Government of West Bengal in deference to the order dated 11th
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September, 2018 passed in W.P. No. 4951(W) of 2018 and praying for a
writ of mandamus commanding the respondents to extend the benefits of
modified pay-scale nos. 16, 17 and 18 of Pay Band (PB)-4A and PB- 4B of Revision of Pay & Allowance Rules, 2009 in terms of the notification vide. no. 691-F(P) dated 7th February, 2011, the present writ petition has been instituted.
2. Shortly put, a legal question which has spiraled up to this court seeking its quietus is whether or not the employees of Agricultural Training Centre, Ramrishna Mission Ashram, Narendrapur, Kolkata are entitled to the benefits of the notification dated 7th February, 2011.
3. To resolve the question, the brief facts which need to be adumbrated are as follows:-
i) The Agricultural Training Centre (in short, ATC), which is a Government-Sponsored training institute, is engaged in organizing various sorts of pre-service, in-service and professional training courses on Agriculture-related subjects. It functions under the aegis of Ramkrishna Mission Ashram, Narendrapur.
ii) Petitioners officiate different posts belonging to 'A' category of ATC. In terms of rules governing the field, the petitioners enjoy the scales of pay and its upward revisions, as made from time to time by the Government of West Bengal at par with the government employees.
iii) The benefits of ROPA Rules, 1998 were extended to the petitioner and their pays were fitted in the Scale of Pay of Rs. 8000-275-13,500/-.
iv) From a letter of the Deputy Secretary, Finance Department, Audit Branch, Government of West Bengal vide Memo No.8055-F dated 24th 3 October, 2008 addressed to the Secretary to the Government of West Bengal, Department of Agriculture, it would be explicit that the Finance Department, Government of West Bengal took the stand that there would be no difficulty to allow the revised pay-scales to the employees of ATC as per the recommendation of 5th Pay Commission i.e. ROPA Rules, 2009 (hereinafter referred to as the WBS ROPA Rules, 2009).
v) After promulgation of ROPA Rules, 2009, a separate ROPA Rules vide.
notification dated 19th May, 2009 (hereinafter, the ATC ROPA Rules, 2009) was framed for the employees of ATC and according to their official status, the petitioners were placed in Pay Band (PB)-4 and they are fitted in pre-revised scale nos. 16, 17 and 18 of ROPA Rules, 2009.
vi) The Pay structure of Group-A employees of ATC as per ATC ROPA Rules, 2009 in PB-4 is as follows:-
Serial No. Existing pay scale Revised pay scale
12. Rs. 4,800-10,925/- Rs. 9,000-40,500/-
13. Rs. 5,000-11,275/- Rs. 9,000-40,500/-
14. Rs. 5,500-11,315/- Rs. 9,000-40,500/-
15. Rs. 6,000-12,000/- Rs. 9,000-40,500/-
16. Rs. 8,000-13,500/- Rs. 9,000-40,500/-
17. Rs. 10,000-15,525/- Rs. 9,000-40,500/-
18. Rs. 12,000-18,000/- Rs. 9,000-40,500/-
vii) A bird-eye's view of both the ROPA Rules would reveal that the PB-4 or
the pre-revised scale nos. 16, 17 and 18 are similar to each other. 4
viii) However, sometime in 2011, on the plea that some disparities in the matter of fixation of pay scales crept in the WBS ROPA Rules, 2009, the scales of pay under serial nos. 16, 17 & 18 of PB-4 thereof were modified vide. memo. no. 961/F (P) dated 7th February, 2011 and two new pay bands, namely, PB-4A & PB-4B were introduced.
ix) By that notification, the pre-revised scales under serial nos.16 and 17 being the pre-revised scales of 8000-275-13,500 and 10,000-325- 15,525 respectively were placed in PB-4A and elevated to scale of pay of Rs. 15,600-42,000/- with Grade Pay of 5,400 and 6,600/- respectively whereas the pre-revised scale no.18 being the pre-revised scale of Rs. 12,000-375-18,000/- was in included in PB-4B and upgraded to the scale of pay of Rs. 28,000-52,000/- with Grade Pay of Rs. 7,600/-.
x) Situated thus, the petitioners approached the competent authority of the ATC soliciting its effective steps so that the petitioners can enjoy the benefits of notification dated 7.2.2011. The consultative committee constituted as per the ROPA Rules in its meeting held on 3rd June, 2014 reached to a decision that the petitioners are entitled to get the benefits and accordingly, it pushed through a proposal for grant of such benefits of the petitioners to the Director of Agricultural, West Bengal. After evaluation of the proposal, the Director of Agriculture, Government of West Bengal by a letter dated 3rd March, 2011 forwarded the same to the Finance Department, Government of West Bengal with favourable recommendation.
xi) Subsequently, the petitioner received a communication dated 20.02.2024 from the Department of Agriculture, Training Branch, 5 Government of wherefrom it transpired that the Finance Department, Government of West Bengal in its order had observed that the benefits of the notification dated 17th February, 2011 are meant for the government employees only.
xii) On enquiry, the petitioner came to learn that the benefits of the notification dated 7th February, 2011 have been extended to the Government Agriculture Training Centre.
xiii) Feeling aggrieved by such discrimination, the petitioner moved a writ petition being WP No.4951 (W) of 2018, which was disposed of by an order dated 11th September, 2018 directing the Secretary of Finance Department, Government of West Bengal and Director of Agriculture Department, Government of West Bengal to decide the issue in the light of the observations made in the order after affording opportunity of hearing to the petitioners and by passing a speaking order.
xiv) In compliance with the order dated 11th September, 2018, the Additional Chief Secretary, Finance Department and the Director by passing a reasoned order dated 11th April, 2019 observed that the notification dated 17th February, 2011 is not applicable to the petitioners. Assailing the reasoned order dated 11th April, 2019, the present writ petition has been instituted.
4. The parties have used their respective affidavits, as directed.
5. Mr. Jana, learned advocate appearing for the petitioner laid immense emphasis on the communication of the Deputy Secretary to the Government of West Bengal, Finance Department dated 24th October, 2008 and sought to contend that there cannot be any impediment to 6 extend the benefits of notification dated 7th February, 2011 in favour of the petitioners.
6. Inviting my attention to the fixation of scales of pay (PB-4) of both the ROPA Rules, he sought to argue that there were no differences between the two pay bands. He contended that to remove certain anomalies, the PB-4 of WBS ROPA Rules, 2009 was modified.
7. Taking me to the order passed in W.P. no.4951 (W) of 2018, he argued that the Hon'ble co-ordinate Bench had already observed that the petitioners are entitled to the benefits of notification dated 7.2.2011 and such observations have not been challenged in any higher forum and consequent thereto, the observations, as made in the order dated 11.9.2018 are binding upon the State. He prayed that a direction be given to the respondents to extend the benefits of the notification dated 7.2.2011 in favour of the petitioners.
8. In response, Mr. Mukherjee argued that the petitioners cannot claim themselves to be identically circumstanced with the Government employees. He sought to contend that at that time of fitment of their scales in ROPA 2009, some discrepancies crept in and as such, by a notification dated 7th February, 2011, the PB-4 of ROPA Rules, 2009 was modified and two new pay bands being PB-4A and PB-4B were introduced. According to him, no discrepancies arose in ATC ROPA Rules, 2009 resulting in a financial loss to the petitioners. He sought to elaborate his argument by contending that in the WBS ROPA Rules, 2009, there were almost 25 scales of pay whereas in ATC ROPA Rules, that there were only 19 scales of pay. In the former, there were five pay bands from PB-1 to PB-5 whereas in 7 ATC ROPA Rules, there are only four pay bands being PB-1 to PB-4. According to him, the denial of benefits of the notification dated 7th February, 2011 to the petitioners has found its justification in such differences.
9. Heard the learned advocates. Perused the pleadings of the parties and all other materials on record placed before me.
10. Indisputably, before promulgation of WBS ROPA Rules, 2009, the petitioners used to enjoy the scales of pay at par with the government employees in terms of ROPA Rules, 1998.
11. In his communication vide Memo No.8055-F dated 24th October, 2008 addressed to the Secretary to the Government of West Bengal, the Deputy Secretary, Government of West Bengal , Finance Department, Audit Branch, Government of West Bengal was unequivocal to clarify the stand of the Finance Department, Government of West Bengal that „there will be no difficulty in allowing the revised scales of pay to the employees of the Agricultural Training Centre, R.K. Mission, Narendrapur as and when the pay of the employees under the Government of West Bengal will be revised as per recommendation of the 5th Pay Commission.‟
12. As per recommendation of the 5th Pay Commission, ROPA Rules, 2009 was framed for the employees enumerated therein. Admittedly, a different ROPA Rules being ATC ROPA Rules, 2009 was framed for the employees of ATC.
13. The WBS Rules, 2009 was introduced under a notification vide. no.
1690-F dated 23rd February, 2009 with further clarifications, as contained in the notifications vide. nos. 1691-F, 1692-F & 1694-F all dated 23rd 8 February,2009 & 2014-F dated 9.3.2009. ATC ROPA Rules, 2009 was also framed following the guidelines contained in the above-referred notifications.
14. In terms of the ATC ROPA Rules, 2009, the employees of the ATC were divided into four categories, i.e. from the category A to category-D. The petitioners who enjoy pre-revised scale nos. 16, 17, 18 of PB-4 with grade pay ranging from 4400-6600/- were included in the category-A.
15. The Part- D of the WBS ROPA Rules, 2009 postulates that in PB-4, the existing pay scales bearing serial nos. 12 to 18 including some scale variants being the scales of pay from a minimum pay of Rs. 4800/- to the maximum pay of Rs. 18,000/- with grade pays ranging from 4400/- to 7600/- were included with the provisions of higher initial start and entry point minimum pay whereas in ATC ROPA Rules, 2009, the existing pay scale nos. 12 to 18 being Rs. 4800/- to 18000/- with grade pays ranging from 4400/- to 7600/- were included in PB-4.
16. The OSD & Ex-officio Special Secretary to the Government of West Bengal by his memo. vide. no. 961-F(P) dated 7th February, 2011 notified that in WBS ROPA Rules, 2009, certain substantial disparities were noticed in the matter of fixation of the employees drawing pay in the unrevised scale nos. 18 and 19, which were included in pay band nos. 4 and 5, resulted in a huge difference between minimum pension and family pension of the Officers retired prior to 1.1.2006 from the unrevised scale nos. 18 and 19. Accordingly, Pay Band no.4 was split. Two new pay bands being PB- 4A and PB-4B were introduced. The modification was given effect to from 1.1.2006.
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17. From the notification dated 7.2.2011, it would be explicit that pre-
revised scale nos. 12 to 15 with grade pays ranging from 4400/- to 4800/- were kept in PB-4 whereas pre-revised scale no. 16 and 17 i.e. the scales of pay of Rs. 8000- 275-13,500/- and Rs. 10000-325-15,525/- respectively were included in new PB-4A and the pre-revised scale no. 22 i.e. the scale of pay being 10000- 18,000/- found its place in PB-4A whereas the prevised scale no. 18 i.e. scale of pay being 12,000-375-18,000/- was included in PB-4B.
18. As such, in terms of the notification dated 7.2.2011, pre-revised scales of pay ranging from minimum pay of Rs. 8000/- to maximum pay of Rs. 18,000/- were modified to the following extent:-
Existing Pay Scales (Rs.) Revised Pay Structure
Pre-revised Pre-revised Name of Pay Band Grade Pay
Scale No. Scales under Pay Band Scale
the WBS
(ROPA)
Rules, 1998
16 8000-275- PB-4A Rs. 15600- Rs. 5400/-
13500/- 42000/-
17 10000-325- PB-4A Rs. 15600- Rs. 6600/-
15,525/- 42,000/-
22 10000-300- PB-4B Rs. 15600- Rs. 7000/-
15100-350- 42000/-
16500-375-
18000/-
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18 12000-375- PB-4B Rs. 28000- Rs.7600/-
18000/- 52000/-
19. The petitioners felt themselves to be entitled to the benefits of the notification dated 7.2.2011 and as such, they approached the competent authorities seeking such benefits but their prayer was regretted, as would be reflected from a communication of Joint Secretary, Department of Agricultural, Training Brach, Government of West Bengal dated 21.04.2010 addressed to the Director of Agriculture, West Bengal. (Annexure-R/1 to the affidavit-in-reply) The communication was issued in concurrence of Finance Department vide. U.O. No. 344 Gr-P service dated 12.4.2010.
20. In such conspectus, the petitioners sought intervention of this Court in the issue by preferring a writ petition being WP No.4951 (W) 2018, which was disposed of by an order dated 11th September, 2018.
21. In the order dated 11.9.2018, it was observed that the Secretary, ATC also had arrived at a finding that same discrepancies had crept into the ATC ROPA Rules, 2009 also and the conclusion and/or observation of the finance department that the benefits of notification dated 7.2.2011 was meant for government employees are irrelevant and if the finance department had indeed taken such a decision contrary to these observations, then such decision ought not to have seen the light of the day. A further observation was made therein that the PB-4 was applied to the employee of ATC without any modification. Subsequently, if any disparity crept in PB-4 of WBS ROPA Rules, 2009, the same disparities 11 also crept in the PB-4 of ATC ROPA Rules, 2009 and as such, similar measure should have been adopted in respect of ATC ROPA Rules, 2009 also.
22. A bare perusal of the order dated 11.9.2018 would reveal that though the issue was relegated to the respondent nos. 2 and 3 to decide but in the order, in ambiguous words, the respondent nos. 2 and 3 were directed to give effect to same benefits (the benefits of notification dated 7.2.2011) to the employees of ATC and disburse benefits including arrears within a specified time.
23. However, in the operative part of the order dated 11.9.2018, the following direction was given:
"I clarify that the decision shall be taken by the said respondent nos. 2 and 3, but in the light of my observations and shall be communicated to the writ petitioner. The decision shall be taken after an opportunity of being heard is given to the petitioner and shall be a speaking order. At the time of hearing the departments concerned shall be entitled to represent how, if at all, the cases of writ petitioners are different from those for whom the benefit was given, except for taking the point that they are employees of a government sponsored training institute."
24. Admittedly, the State of West Bengal did not think it fit to assail the order dated 11.09.2018 in any intra-court appeal and as such, the observations made in the order are binding upon the State.
25. However, in terms of the order dated 11.09.2018, the Additional Chief Secretary, Finance Department and the Director of Agricultural, Government of West Bengal in their joint decision taken on 11.04.2019 negated the petitioners' claim attesting the view of Finance Department, as 12 expressed earlier, contending that the notification dated 7.2.2011 is applicable to only those employees who are covered by WBS ROPA Rules, 2009 and not to the petitioners.
26. Though the State of West Bengal has allowed the observations made in the order dated 11.09.2018 to attain its finality but availing of liberty which was granted to the department in the concluding part of the order dated 11.9.2018 to the effect that 'at the time of hearing the departments concerned shall be entitled to represent how, if at all, the cases of writ petitioners are different from those for whom the benefit was given, except for taking the point that they are employees of a government sponsored training institute', the decision-makers arduously drew a distinction between both the ROPA Rules and eventually, put their stamps of approval on the observation of the Finance Department that the notification dated 7.2.2011 is meant for government employees only.
27. As noticed earlier, in the reasoned order, efforts were made to draw a distinction between two ROPA Rules, 2009 to justify the stand of the Finance Department that the notification dated 7.2.2011 is not meant for the employees of ATC.
28. In the reasoned order, the following distinctions between the two ROPA Rules were noticed:-
WBS ROPA Rules, 2009 ATC ROPA Rules, 2009 Schedule-I is divided into six parts Schedule-I is divided into five parts e.g. from Part-A to Part-F e.g from Part-A to Part-E. N.B. These Parts are not identically similar to those of ATC ROPA Rules, 2009 13 Existing pay scales range from scale Existing pay scales range from scale no. 1 to scale no. 24 no.-1 to scale no. 18 Pay Bands range from PB-1 to PB-5 Pay Bands range from PB-1 to PB-4 26 nos. of Grade Pay' ranging from 18 nos. of 'Grade Pay' ranging from Rs. 1700 to Rs. 10,000/- Rs. 1700 to 7600/-
Provisions for 'higher initial start' & No such provisions. 'entry point minimum pay' have been introduced Many scale variants exist No such scale variants. Only basic scales from scale no. 1 to scale no.
18 have been included.
13 Grade Pays in PB-4 ranging from 7 Grade Pays in PB-4 ranging from Rs.4400 to Rs. 8000/- Rs. 4400 to 7600/-
29. In paragraph-(VI) of the reasoned order, the disparities which necessitated the issue of notification dated 7.2.2011 were explained by citing following examples:
(i) In scale no. 15(b) (Rs.9000-40,500/-), grade pay 5040 but the minimum pay was Rs. 14510/- whereas in scale no. 16 (Rs.9000-
40,500/-), the grade pay was Rs.5400/- i.e. minimum basic pay in scale no. 16 would be Rs. 14,400/-(Rs.9000 +5400/-) which is lesser than the minimum pay of scale no. 15(b) being Rs. 14510/-.
(ii) In scale no. 16(a), minimum pay was protected at Rs. 16,930/-
and the grade pay was Rs.5640/- and as such, the minimum pay 14 will be Rs.16,930/- + Rs. 5640/- i.e. Rs. 22570/- whereas in scale no. 16(b), entry point minimum pay was protected at Rs. 16930/- and the grade pay was fixed at Rs. Rs. 5400/- and as such, minimum pay at this scale would be Rs. 22330/- (Rs. 16930+ 5400/-) which is lesser than the minimum scale of scale no. 16(a).
(iii) In scale nos. 17 and 18, the minimum pays would be Rs. 15,660/-
and Rs. 16,660/- respectively.
30. In the reasoned order, it was claimed that to remove such defects, two new pay bands being 4A and 4B were introduced in the notification dated 7.2.2011. It was asserted therein that no such pay anomaly exists in pre- revised scale nos. 15, 16, 17 & 18 of ATC ROPA Rules, 2009 for which the petitioners can claim modification of the ATC ROPA Rules, 2009.
31. Though in the case at hand, the pre-revised scale no. 15 has no relevancy, yet it is noticed that in case of example no. (i), as cited in foregoing paragraph no. 28, in scale no. 15(b), the minimum pay, as fixed at Rs. 14510/-was higher than the minimum pay of scale of the scale no. 16 i.e. Rs. 14400/- and in case of example no. (ii), the grade pay of scale pay of scale no. 16(a) being Rs. 5640/- was higher than the grade pay of scale nos. 16(b) being Rs. 5400/- and hence, the anomalies exit.
32. Keeping an eagle's eye on the notification dated 7.2.2011, it would be explicit that such notification saw the light of the day since certain anomalies were detected in unrevised scale nos. 18 and 19 and to remove such anomalies, the finance department restructured PB-4 and as observed earlier, two new pay bands, PB-4A and PB-4B were introduced. 15
33. The notification dated 7th February, 2011 indicates omission of four scale variants, namely, scale nos. 15(a), 15(b), 16(a) and 16(b) of WBS ROPA Rules, 2009 and by virtue of that notification, the pre-revised scale nos. 16, 17 and 22 were included in PB-4A whereas the scale nos. 18 and 24 were included in PB-4B and consequential modifications have been incorporated in notifications dealing with pension and family pension of the employees who retired enjoying such scales but it is to be noted that no modification was done of pre-revised scale no. 19.
34. However, the ultimate result of issue of the notification dated 7.2.2011 is that the pre-revised scale nos. 16 and 17 have been upgraded to scale of pay of Rs. 15,600- 42,000/- whereas the pre-revised scale no. 18 has been elevated to the scale of Rs. 28,000 -52,000/-.
35. Thereafter, the Finance Department, Government of West Bengal has put its stamp of „only for government employees' on the elevation of those pay-scales based on the reasoning, as reflected in the notification and the reasoned order. Therefore, the epicentre of conflict at hand has its origin in limiting the benefits of elevation of these three scales of pay to the government employees only.
36. On studied scrutiny of the reasoned order, two ROPA Rules and notification dated 7.2.2011, it transpires that omission of scale variants i.e. scale nos. 15(b), 15(b), 16(a) and 16(b) or re-fixation of entry point minimum pay in those scales could have been suffice but citing such anomalies, ultimately, scale nos. 16, 17 and 18, which are usually enjoyed by high officials of the administration, have been elevated and its resultant 16 benefits have been kept confined to the government employees of that strata only.
37. In the reasoned order, certain anomalies have been cited to justify the elevations of pre-revised scale nos. 16, 17 and 18, paving the same way, some anomalies can also be located in ATC ROPA Rules, 2009. Take an example from 'Fitment Tables in the Revised Pay Band', as appended to ATC ROPA Rules, 2009. In pre-revised scale no. 16, the employees who reached to pre-revised basic pay of Rs. 10,200/-, his revised basic pay would be Rs. 24,380/- whereas in scale no. 17, who would enjoy pre- revised basic pay of Rs. 10,000/- his revised basic pay would be Rs. 25,200/-. As such, the Hon'ble Justice Protik Prakash Banerjee (as His Lordship then was) observed that if any defect is created in WBS (ROPA) Rules, 2009 which lead to issue of notification dated 7.2.2011, the same disease shall also exit in ATC ROPA Rules, 2009 and hence, same remedial measures are to be applied in the latter rules also.
38. Article 14 of the Constitution of India forbids only class legislation and not reasonable classification. A classification is reasonable when the twin tests as laid down in the celebrated decision, reported at AIR 1975 SC 75 (State of W.B -vs- Anwar Ali Sarkar) are fulfilled. The twin tests are follows:
(i) The classification must be based on an intelligible differentia which distinguishes persons or things that are grouped, from others left out of the group; and 17
(ii) The differentia must have a rational relationship to the object sought to be achieved by the statute.
39. Therefore, it is to be looked into whether the differentia is reasonable and intelligible. If the answer to this question comes in affirmative, then it is to be examined whether such differentia has any nexus with the object of the scheme. It goes without saying that the expression 'intelligible' connotes 'what can be understood'.
40. Needless to state that dearness allowances are provided to the employees to meet the challenge of price-hike of daily necessities etc. whereas the pays of the employees are restructured giving anxious considerations to various factors, namely, price-index, price spike of various commodities, rise in the cost of living etc. Be it noted that equity and fair compensation for employees is a key part of managing wages and salaries. A fair compensation contributes to employees' satisfaction. The jobs are categorized into different levels and pay grades and/or pay bands are fixed based on factors such as skill requirements (education, experience etc.), duties and responsibilities etc. The comparative study of scales of pay or wage levels of different organisations are also undertaken to ensure fairness in pay system.
41. Therefore, the price-hike etc. will equally affect the government employees and the employees of ATC who used to enjoy pre-revised scale nos. 16, 17 and 18 but the stand of Finance Department is that only the government employees would be compensated and no others. Such classification can never be accepted to be reasonable. The rational 18 relationship between such classification and the object sought to be achieved by introducing ROPA Rules, 2009 is lacking.
42. Indisputably, similar scales of pay i.e. pre-revised scales no. 16, 17 and 18 of the WBS ROPA Rules, 2009 were inserted in ATC ROPA Rules, 2009 without any modification. Needless to state that the employees of ATC belonging to 'A' draw such pay-scales. As such, the 'A' category employees of ATC were equated with the government employees, who used to enjoy pre-revised scale nos. 16, 17 and 18, in all aspects i.e. in their official or social status and/or positions.
43. Therefore, where the shoe pinches is that citing some disparities in certain scales of pay of WBS ROPA Rules, one set of employees of equal status are being forced to accept an inferior official status and substandard living than another set of employees of equal status. Hence, it is crystal clear that though it was prohibited in the order passed in WP no. 4951(W) of 2018, yet actually, the same point that the petitioners are the employees of government-sponsored training centre has been taken.
44. Admittedly, by issue of the notification dated 7.2.2011, the PB-4 has been restructured and the pre-revised scale nos. 16, 17 and 18 have been modified w.e.f. 1.1.2006. As such, it can be concluded that the modification has an effect of repeal of those scales from the WBS ROPA Rules. Such modification shall inevitably lead any prudent man to act on the supposition as if there were no revised scale nos. 16, 17 and 18 and the scale variants being scale nos. 15(a), 15(b), 16(a) and 16(b) in the ROPA Rules, 2009. Needless to state that such modification must relate back to the date of introduction of ROPA Rules, 2009 and as noticed earlier, 19 though different names were given but same scales of pay were included in PB-4 of ATC ROPA Rules, 2009 also. Hence, the primary sources from which those scales of ATC ROPA Rules, 2009 could be traced are lost.
45. In the reasoned order, a comment made that the coverage of ATC (ROPA) Rules, 2009 has only made available to the employees of the ATC and „there is no commitment on the part of the Government that any further amendment of ROPA Rule would be automatically to be extended to the petitioners‟. The revision of pay structure does not depend upon the commitment on the part of the Government. The Government is bound to recognise the devaluation of money and its resultant degradation of the standard of living due to spike of costs of living. Take an example, having regard to the price index etc., the scale of pay which was fixed at Rs.10,000/-at one point of time, considering the devaluation of money and rise in cost of living when pay will restructured, such scale of pay of Rs. 10,000/- must be fitted in the comparative revised scale of pay to enable the employee to retain the same socio-economic status. It is to be noted that revision of pay is made on the basis of recommendation made by the experts. The Government cannot, according to its whims, extend any benefit to one set of employees and can deny such benefits to other set of employees of similar status. Our country has elevated itself to a welfare State and as such, it cannot take a decision in the way, a feudal lord would take waving his imperial hand.
46. To address certain disparities, as noticed in the notification dated 7 th February, 2011, the Finance Department has elevated the above-referred three pay-scales to avoid resultant financial loss of a set of existing and 20 retired employees who enjoy or used to enjoy those scales of pay but such elevation has resulted in an unreasonable classification. Hence, at this juncture, without taking into account the mischief to suppress of which the modification was introduced but since the modification has resulted in unreasonable classification which offends basic tenets of our Constitution, the only possible way out is to apply such modification uniformly to all employees, irrespective of the facts whether they are attached to the government establishment or to the government-sponsored institution.
47. It is well ingrained principle that the State and its functionaries must act strictly adhering to the statutes, settled principles of law and constitutional philosophy. In a democracy governed by the rule of law, no government or authority has a right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically.
48. The doctrine of equality, which is soul of our Constitution, is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. Indisputably, the principle of equality of law means not that the same law should apply to everyone but that a law should deal alike with all in one class and there should be an equality of treatment under equal circumstances else the citizens of our country shall feel themselves cheated by the action of the State.
49. As such, what flows from the above discussion is that the classification sought to be made between government employees and the employees of ATC are not reasonable classification due to its failure to fulfil the afore-mentioned twin tests.
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50. Therefore, the reasoned order cannot be sustained on the reasoning that the observations made in the order dated 11.9.2018 passed in WP no. 4951(W) of 2018 disapproving the stand of the Finance Department that the notification dated 7.2.2011 is meant for the government employees only, has attained its finality. It is well settled norms that even a wrong order unless the same is set aside by a higher forum is binding upon the parties.
51. Utilising the rider to its fullest extent, the decision-makers virtually took the point that the petitioners are employees of government-sponsored training institution. I am informed that such benefits have been extended to the employees of the government training centres. As such, the reasoning upon which the classification, as sought be made in the reasoned order between the government employees including the employees of government training centre and the employees of ATC is arbitrary, unreasonable and misconceived.
52. Thirdly, the modification has the effect of repeal of the sources from which the pre-revised scale nos. 16, 17 and 18 could be traced back and in case of repeal, one shall act on the supposition as if those scales had never existed and as such, it must be presumed that in absence of the scale nos. 16, 17 and 18 in its primary source, the modified scale nos. 16, 17 and 18 were fitted against the corresponding scales applicable to the employees of ATC.
53. Now, the question which next comes is whether or not the issue should be again relegated to the respondents since the primary responsibility to resolve the issue falls within their domain. Having given 22 anxious consideration to the chronological events, I am not inclined to relegate the issue to the respondents. In the judgment, reported at AIR 1988 SC 686(K.I. Shephard vs. Union of India), the Hon'ble Supreme Court observed that it is common experience that once a decision has been taken, there is tendency to uphold it. As such, a further relegation of the issue to the authorities would be akin to inviting another order affirming the earlier stand of the Finance Department. Be it noted here that the Courts relegate the issue not because of the fact that the Courts are unable to resolve the issue but to show regard to the independency of other organs of power. Normally, the Courts restrain themselves from encroaching the confines of the executives.
54. In a decision, reported at (2004) 8 SCC 683 (E.T. Sunup vs. C.A. N.S.S. Employees Assn.), the Hon'ble Apex Court lamented that it has become a tendency with the government officers to somehow or the other circumvent the orders of Court and try to take recourse to one justification and other. This shows complete lack of grace in accepting the orders of the Court. This tendency cannot be countenanced. In a democracy, the role of the Court cannot be subservient to administrative fiat. The executive and the legislature have to work within the constitutional framework and the judiciary has been given the role of watchdog to keep the legislature and executive within check.
55. As a result, in view of foregoing analysis, the reasoned order signed on 11.04.2019 (Annexure-14 to the writ petition) is set aside. The writ petition is disposed of directing the respondent no. 2 to extend the benefits of notification vide. no. 961-F(P) dated 7.2.2011 in favour of the petitioners 23 within a period of two months from the date of receipt of a copy of this order. It would be open to the respondent no. 2 to issue any notification to carry out this order in its letter and spirit.
56. With these observations and order, the writ petition is, thus, disposed of, however, without any order as to the costs.
57. Parties shall be entitled to act on the basis of a server copy of this Judgement and Order placed on the official website of the Court.
58. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Partha Sarathi Chatterjee, J.)