Meghalaya High Court
Jalesh Kumar & Anr vs . Union Of India & Ors on 25 April, 2022
Bench: Sanjib Banerjee, W. Diengdoh
Serial No.02
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP (C) No.352/2021
Date of Order: 25.04.2022
Jalesh Kumar & anr Vs. Union of India & ors
Coram:
Hon'ble Mr. Justice Sanjib Banerjee, Chief Justice
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioners : Mr. M. Chanda, Adv with
Mr. M.L. Nongpiur, Adv
For the Respondents : Dr. N. Mozika, ASG with
Ms. S. Rumthao, Adv
i) Whether approved for reporting in Yes
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT:(per the Hon'ble, the Chief Justice) (Oral) The matter pertains to the perceived anomaly in the pay-scale offered to the Assistants, who occupy a civilian post in the Assam Rifles. There is no dispute that since 2008 all posts in Assam Rifles and other Central paramilitary organisations have been combatised and the civilian cadre of Assistants in Assam Rifles will die out in the next few years. Page 1 of 17
2. The present writ petition arises out of an order of December 21, 2018 passed by the Central Administrative Tribunal, Guwahati Bench on a petition of several persons who occupied the post of Assistant in Assam Rifles. The principal case carried out to the Tribunal was that since the duties and responsibilities of Assistants across the Central paramilitary forces were equal, there ought not to be any disparity in the pay and emoluments between persons in the Assistant cadre in one Central paramilitary organisations and the members in the similar cadre in another.
3. This is the second round of litigation between virtually the same parties, though the Union insists that several of the original petitioners have abandoned the cause and the matter be confined to only the two petitioners who are before this Court pursuing the grievance while the others are deemed to have resigned to their fate and accepted the order of the Tribunal or the previous rejection of their requests at various levels. By the order impugned, the Tribunal has held that since Assistants in Assam Rifles, historically, did not have the same pay- scales as Assistants in other Central paramilitary forces, parity in pay- Page 2 of 17 scale could not be sought with the other civilian Assistants in comparable organisations.
4. Under the Third Central Pay Commission, while the Assistants in Central Industrial Security Force, Indo-Tibetan Border Police, Sashastra Seema Bal and Border Security Force were granted a pay- scale of Rs.425-800, Assistants in Assam Rifles were granted a pay- scale of Rs.425-700. Again, the Fourth CPC granted a pay-scale of Rs.1640-2900 to Assistants in the four other Central paramilitary forces but granted only Rs.1400-2300 to Assistants in Assam Rifles. The Fifth CPC continued the distinction as Assistants in the other four paramilitary forces had their pay-scale revised to Rs.5500 to 9000 while Assistants in Assam Rifles were recommended to receive Rs.4500-7000.
5. It does not appear that the duties and obligations of civilian Assistants in the other four comparable paramilitary forces are any greater than or different from the duties and responsibilities of the civilian Assistants in Assam Rifles. Indeed, as would be evident from a recommendation of July 5, 2004 made by the Director-General of Assam Rifles to the Union Home Ministry, the same pay-scale as extended to Page 3 of 17 Assistants in the four other paramilitary forces was demanded to be made effective for Assistants in Assam Rifles.
6. Paragraphs 2 and 5 of the recommendatory letter of July 5, 2004 may be noticed:
"2. It appears that our above proposal mixed up with consolidated proposal submitted subsequently vide our letter No. A/1-A/2787-86/492 dated 02 Feb 2001 seeking up gradation of pay scale of Assistant to Rs.5500-9000 at par with the other CPOs and also for upgradation of pay scale of Superintendent and AO/AAO/RO/CGO."
"5. In view of the above it is strongly recommended that Assistant of this Directorate may please be granted at least the revised pay scale of Rs.5000-8000/- wef 01-1-96 as per part 'B' of the first schedule of CCS(RP) Rules, 1997, pending finalisation of upgradation of pay scale of Assistant, Supdt and AO/AAO/RO/CGO at par with other CPOs as mentioned in para 2 above. This would reduce the financial hardship being faced by the Assistants to a great extent."
7. It is apparent from a plain reading of the relevant letter of July 5, 2004 that the DGAR required the same pay-scale as in respect of other paramilitary forces to be extended to the Assistants in Assam Rifles. Such a recommendation could not have been made without the DGAR acknowledging and accepting that the duties and responsibilities of the personnel in the four other paramilitary forces and the duties and Page 4 of 17 responsibilities of Assistants in the civilian cadre in the Assam Rifles were the same. Indeed, as would be evident from the fifth paragraph of the letter quoted above, though a stop-gap arrangement was suggested under which the Assistants in Assam Rifles would, at least, be granted the pay-scale of Rs.5000-8000, the recommendation or the demand remained that they should be given the pay-scale of Rs.5500- 9000.
8. The Ministry of Home in the Union government acceded to the request made by way of a stop-gap arrangement and, by its letter of March 30, 2005, agreed that Assistants in Assam Rifles be granted the pay-scale of Rs.5000-8000 with effect from January 1, 1996, but notionally. The actual financial benefits of the upgraded pay-scale were to be received from the date of issuance of the letter. In other words, all benefits of the upgraded pay-scale could be obtained by persons in the civilian post of Assistant in Assam Rifles with effect from March 30, 2005.
9. The recommendation to permanently bring the pay-scale of Assistants in the civilian post in Assam Rifles cadre at par with the Assistants in other Central paramilitary forces, was finally rejected by the Union Home Ministry's letter of September 26, 2006 on the grounds Page 5 of 17 that a recent upgradation had been effected in March, 2005 and that the civilian post of Assistant in Assam Rifles had been declared a dying cadre. Significantly, it was not indicated in the relevant letter rejecting the proposal of DGAR that the duties and responsibilities of Assistants in Assam Rifles were any different from those of the comparable employees in the other Central paramilitary forces. The letter of rejection also required Assam Rifles to pursue the case with the Sixth CPC which had then not finalised its recommendations.
10. The petitioners submit that even though a detailed representation was made before the Sixth CPC, the matter was not alluded to by such commission and the demand for upgradation of pay- scale stood rejected without specific reference to the representation made by the concerned employees.
11. It was in such circumstances that several of the Assistants occupying the only civilian post in Assam Rifles carried a challenge to the Central Administrative Tribunal seeking parity in pay with similar employees in other Central paramilitary forces. Such petition came to be, in effect, rejected by an order of Central Administrative Tribunal, Guwahati Bench of March 4, 2011. The 57 petitioners before the Page 6 of 17 Tribunal were given liberty by the relevant order to "make appropriate representation before the anomaly committee for upgradation of the scale of pay".
12. Such order of March 4, 2011 came to be assailed in this Court by way of a petition under Article 226 of the Constitution of India. The petition was allowed by setting aside the order of the Tribunal and by directing the matter to be considered afresh. The order of this Court of November 22, 2016, inter alia, noticed a judgment reported at (2008) 1 SCC 586 (Union of India v. Dineshan K. K.) and the principle of equal pay for equal work that was accepted by the Supreme Court in such judgment.
13. It is on the basis of this Court's order of November 22, 2016 that the matter went back to the Tribunal for its fresh consideration. By the judgment and order impugned dated December 21, 2018, the Tribunal has rejected the claim, primarily on the ground that, historically, there has always been a difference in the pay-scale pertaining to civilian Assistants in Assam Rifles and the pay-scale offered to Assistants in the other Central paramilitary forces. Page 7 of 17
14. In course of the judgment, the Tribunal noticed the differences in the pay-scales for Assistants in the other paramilitary forces on the one hand and Assistants in Assam Rifles on the other, beginning with the recommendation of the Third CPC. The Tribunal held that it was for the employer to decide to what extent the pay of an employee should be increased and, unless the consideration in such regard was shown to be completely arbitrary and having no nexus with the matter, a Court or Tribunal would not be minded to interfere therewith. The Tribunal referred to a Madras High Court judgment of November 24, 2010 pertaining to All India Radio and Doordarshan Technical Personnel. The Tribunal ruled that the dictum in the relevant judgment was founded on the fact that there was always a pay parity between the comparable posts and, it was such pay parity that was restored upon discovering that the pay-scale in one of the posts had been increased and the similar benefit not extended to another comparable post.
15. The Tribunal also referred to the decision in Dineshan K. K. but found that the ratio decidendi therein would be inapplicable because of the historical disparity between the pay-scale granted to Assistants in Assam Rifles and the higher pay-scale for Assistants in the other Central Page 8 of 17 paramilitary forces as in the present case. The Tribunal referred to the initial pay-scale of Rs.425-700 under the Third CPC and observed that since the pay-scale of the comparable employees in the other Central paramilitary forces was then Rs.425-800, there was no error or anomaly in the Assistants in Assam Rifles drawing less pay than their counterparts in the other Central paramilitary forces.
16. It is necessary in the present context to notice paragraph 27 of the judgment in Dineshan K. K.:
"27. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the "apparent disparity" and "anomaly" in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in prerevised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution."
17. There is no doubt that the Supreme Court noticed that similar duties and responsibilities were discharged by persons in comparable Page 9 of 17 posts across all Central paramilitary forces and found that in case of Radio Mechanics in Assam Rifles there was no "plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles ...".
18. In the present case, implicit in the recommendation of the DGAR of July 5, 2004 was the acceptance that the duties and responsibilities and the work performed by the Assistants in Assam Rifles were similar to those discharged by the Assistants in the other Central paramilitary forces. Indeed, that must be seen to be the basis for the DGAR recommending and demanding the same pay-scale for Assistants in Assam Rifles as Assistants were granted in the other paramilitary forces. As noticed earlier in this judgment, the letter of July 5, 2004 required a lower pay-scale of Rs.5000-8000 be extended to Assistants in Assam Rifles till a final decision in such regard was taken. The fifth paragraph of the relevant letter quoted above merely required an ad-hoc enhanced pay-scale to be offered and the letter must be seen in its entirety wherein the recommendation was for the same pay-scale to Page 10 of 17 be offered to Assistants in Assam Rifles as granted to the Assistants in the other Central paramilitary forces.
19. However, the Union Home Ministry accepted the ad-hoc enhanced pay-scale suggested and, by its letter of March 30, 2005, arbitrarily fixed the increased pay-scale of Rs.5000-8000 to apply notionally from January 1, 1996, but actually from the date of the letter. Thus, the Assistants in Assam Rifles got a limited benefit prospectively and were denied the benefit prior to the date of issuance of the letter without any cogent ground being indicated in such regard or as to why the increase would operate prospectively for them and not when the increase had applied in respect of similar posts in the other Central paramilitary organizations.
20. It is further evident from the subsequent letter of the Union Home Ministry of September 26, 2006, by which the recommendation of the DGAR to upgrade the pay-scale of Assistants in Assam Rifles at par with the pay-scale of other similar employees of Central paramilitary forces was rejected, that such rejection was merely on the ground that the civilian post of Assistant in Assam Rifles was a dying cadre. In neither the original letter of March 30, 2005 nor in the final rejection of Page 11 of 17 the recommendation of the DGAR in the subsequent letter of September 26, 2006 did the Union Ministry of Home indicate that the duties and responsibilities of Assistants in the other paramilitary forces were more than those of the Assistants in Assam Rifles. To such extent, the fact that the ground of disparity in work was never cited as the reason for the lower pay-scale granted to Assistants in Assam Rifles, the plea is not available any more. The Union cannot now be permitted to urge or speak of any distinction between the responsibilities and duties discharged by Assistants in other Central paramilitary forces and those discharged by Assistants in Assam Rifles.
21. However, it is submitted on behalf of the Union that the continuing Assistants in other Central paramilitary forces may not be engaged in a civilian post and such post may have been combatised.
22. There is no doubt that no non-combat Assistant could be recruited in Assam Rifles or in any of the paramilitary forces since 2008 in view of the instructions issued by the Union Home Ministry to the Central paramilitary forces in the year 2008. However, if prior to such cut-off date, Assistants have been recruited in the civilian cadre in the other Central paramilitary forces and such earlier-recruited Assistants Page 12 of 17 continue in the civilian post, then the civilian Assistants in Assam Rifles should not suffer by being treated differently. If, however, it is discovered that there was no civilian Assistant in the four other Central paramilitary forces who had been recruited since 1986, when the recommendation of the Third CPC came into effect, there may be a distinction found between the post of Assistant in Assam Rifles and the similar post in the other paramilitary forces. But, if Assistants continued to occupy a civilian post in the four other paramilitary forces after the recommendation of the Third CPC coming into effect from January 1, 1986, the petitioners and all others who were similarly placed, whether they have retired now or may even have died will be entitled to the same benefits directly or through their heirs in accordance with law. Since the pay-scale enhancement to Assistants in Assam Rifles was extended notionally from January 1, 1996 by the letter dated March 30, 2005 and actually from the date of receipt of such letter, the parity among Assistants across all Central paramilitary forces would be deemed to have been restored on and with effect from March 30, 2005 at the level of Rs.5500-9000 with at par subsequent increase such that with effect from such date there would be no discrimination in the pay-scale applicable to the Assistants in Assam Rifles and the pay-scales of Page 13 of 17 civilian Assistants in the other Central paramilitary forces. This is because of the dictum in Dineshan K. K. and the fact that, as in that case, in the present case there is no plea taken by the Union that the duties and responsibilities of Assistants in Assam Rifles are any different from the duties and responsibilities of Assistants in the other Central paramilitary forces.
23. To clarify, it is reiterated that if the post of Assistant in the other paramilitary forces was not a civilian post with effect from January 1, 1996, Assistants in Assam Rifles as the present petitioners will not be entitled to any further benefit; however, if the Assistants in the four other Central paramilitary forces were also civilian employees as at January 1, 1996, the Assistants in Assam Rifles will be entitled to the same pay- scale as Assistants in the other Central paramilitary forces with effect from March 30, 2005. As a consequence, the multiplication factor of 1.86 that would operate in a disparate manner between the Assistants in the other Central paramilitary forces and the Assistants in Assam Rifles will no longer remain and the present pay to the serving Assistants and pensionary benefits to the retired Assistants of Assam Rifles will be Page 14 of 17 determined on the same basis as of serving and retired Assistants, respectively, in other four Central paramilitary services.
24. WP(C) No. 352 of 2021 is allowed to the extent indicated above by setting aside the judgment and order impugned dated December 21, 2018 and by substituting the same with the above. Since the benefit to the petitioners and other similarly placed Assistants in Assam Rifles, whether serving or retired, would be substantial, no order is made for costs.
25. As to the Union's suggestion that since only two of the original petitioners stayed back to challenge the order of the Tribunal, the benefit conferred by this order must be confined only to these two petitioners, it must be said that the same would be impermissible. What has been noticed here is the entitlement of Assistants in Assam Rifles as a class. The effect has been directed to be given from March 30, 2005 in view of the letter of March 30, 2005 granting a limited increase in the pay-scale which appears to have been accepted by the Assistants in Assam Rifles.
26. It has been appropriately pointed out on behalf of the Union that in the previous round of the proceedings before this Court, the order of November 22, 2016 had confined the issue to the petitioners who Page 15 of 17 were before this Court. The following paragraph from operative part of the relevant order is referred to by the Union:
"In view of the above, this writ petition is allowed to the extent and in the manner that the impugned order dated 04.03.2011 is set aside; and O.A. No. 273 of 2010 is restored for re-consideration by the CAT qua the present petitioners."
27. There is no doubt that the previous order of this Court of November 22, 2016 confined the reconsideration to the cases of the petitioners before this Court. However, no reasons were indicated as to why the decision would apply to some members of a cadre and not to other members of a cadre when it was a general anomaly covering all members of the cadre and not restricted to a few of them. It must also be remembered that the principle that has developed in service jurisprudence in this country is that when an individual complaint pertaining to the special circumstances concerning a particular employee is carried to a Court or a Tribunal and a favourable order is obtained, the benefits thereunder would be confined to the individual employee; but when a grievance carried by one member of a cadre consisting of a large number of personnel is brought before a Court or a Tribunal concerning the general interest of all members of the same cadre, the final order passed would be binding on the employer and the employer would be Page 16 of 17 obliged to extend the benefits to all persons similarly placed. Indeed, anything contrary would be in derogation of the philosophy embodied in Article 14 of the Constitution. At any rate, since the civilian post of Assistant has been phased out, the cost to the Union would be one-time and not recurring for other batches.
28. Accordingly, if the Assistants in the other four Central paramilitary forces are also found to be civilian employees, then all Assistants in civilian post in Assam Rifles ought to be extended the same benefit. However, since it appears that by the letter of March 30, 2005, for some reason or the other, it was determined that the increase would be effective from the date of such letter, such aspect of the matter is not interfered with, though the notional benefit will be available to all Assistants in Assam Rifles with effect from January 1, 1996.
(W. Diengdoh) (Sanjib Banerjee)
Judge Chief Justice
Meghalaya
25.04.2022
"Lam DR-PS"
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