Patna High Court
Birendra Kumar Roy & Ors vs Bihar State Beverages Corporation Ltd. ... on 19 July, 2017
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.162 of 2016
IN
Civil Writ Jurisdiction Case No. 9760 of 2012
===========================================================
1. Naresh Kumar Mishra, S/O Late Shambhu Nath Mishra, Resident of Village
and P.O- Gandhauar, District- Madhubani.
2. Prabhat Kumar Saran S/O Sri Siya Ram Saran R/O/B/138, Housing Colony
Kankarbagh, District- Patna.
3. Ved Prakash S/O Late Yugal Kishore Sahu, Resident of Village and P.O-
Mahua, Police Station- Sarauni, District- Begusarai.
.... .... Appellant/s
Versus
1. Bihar State Beverages Corporation Ltd. Vidyut Bhawan-II, Ist Floor, Jawahar
Lal Nehru Marg, Patna Through the Managing Director.
2. The Managing Director, Bihar State Beverages Corporation Ltd., Vidyut
Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
3. General Manager (Finance), Bihar State Beverage Corporation Ltd., Vidyut
Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
4. General Manager, Human Resources & Administration, Bihar State Beverages
Corporation Ltd., Vidyut Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
5. Manager, Human Resources & Administration, Bihar State Beverages
Corporation Ltd., Vidyut Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
........ PETITIONER-REPONDENTS 1ST SET
6. Nirmal Kumar Sinha, S/o Late Bimla Prasad East Ashok Nagar, Kankarbagh,
District- Patna.
7. Sheonandand Prasad S/O Sri Lakhan Ram Resident of Mohalla- East
Bikhachak, Chandrabanshi Nagar, P.O- Anishabad, District- Patna.
PETITIONERS-RESPONDENTS 2ND SET
With
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Letters Patent Appeal No. 568 of 2016
IN
Civil Writ Jurisdiction Case No. 3224 of 2012
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1. Birendra Kumar Roy, son of late Vashudeo Rai, resident of village Chaknaur,
P.O. Gadaisarai, P.S. Hazipur Sadar, District-Vaishali
2. Bipin Kumar Singh, son of late M.P.Singh, resident of village- Kulharia, P.S.
Koelwar, District-Bhojpur
3. Dinesh Chandra Singh, son of Dr. Lallo Singh, Resident of 301, Chandan Mahal
Apartment, Khajpura, near Ara Garden More, Bailey Road, P.S. Airport,
District- Patna
4. Sultan Ali Ansari, son of late Md. Rafique Ansari, Resident of village- Chand
Mohan, P.O. & P.S. Kundwa, Chainpur, District- East Champaran
5. Sunil Kumar Jaiswal, son of Sri M.L. Jaiswal, Resident of 73, Shakti Nagar,
Saket Bihar, P.O. Anisabad, P.S. Phulwarisharif, District- Patna
6. Abhay Kumar Singh, son of Sri Ram Lakhan Singh, Resident of Qtr. No.
Patna High Court LPA No.162 of 2016 dt.19-07-2017
2/35
24/48, Lal Bahadur Shastrinagar, P.S. Shastrinagar, District- Patna
.... .... PETITIONERS-APPELLANTS
Versus
1. Bihar State Beverages Corporation Ltd. Vidyut Bhawan-II, Ist Floor, Jawahar
Lal Nehru Marg, Patna Through the Managing Director.
2. The Managing Director, Bihar State Beverages Corporation Ltd., Vidyut
Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
3. General Manager (Finance), Bihar State Beverage Corporation Ltd., Vidyut
Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
4. General Manager, Human Resources & Administration, Bihar State Beverages
Corporation Ltd., Vidyut Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
5. Manager, Human Resources & Administration, Bihar State Beverages
Corporation Ltd., Vidyut Bhawan-II, 1st Floor, Jawahar Lal Nehru Marg, Patna.
PETITIONERS-RESPONDENT 1ST SET
6. Arun Kumar Verma, son of Late D.C. Verma, Resident of Mig-139,
Kankarbagh Colony, P.S. Kankarbagh, District- Patna
7. Bhushan Prasad Singh, son of Tarkeshwar Singh, resident of Nalanda Colony,
P.S. Shastrinagar, District- Patna
8. Anil Kumar Singh, son of late Sita Ram Singh, Resident of village-Raipura,
P.O. Chatmadih, P.S. Shambhuganj, District- Banka
9. Parsuram Singh, son of late Chandeshwar Prasad, Resident of East Rapaspur,
P.S. Dhanaut, Sahay Nagar, P.S. Danapur, District- Patna
10. Kaleshar Prasad Singh, s/o late Naket Singh, resident of village Bahadurpur,
P.O. Rupas, P.S. Athmalgola, District- Patna
.... PETITIONERS-RESPONDENTS 2ND SET
===========================================================
Appearance :
For the Appellant/s : Mr. Vindhyachal Singh, Advocate
Mr. Prabhat Ranjan Singh, Advocate
For the Respondent/s : Mr. Lalit Kishore, Sr. Advocate
Mr. Girijish Kumar, Advocate
===========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
And
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
C.A.V. JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY)
Date: 19-07-2017
1. In these two intra- Court appeals, the appellants
have challenged the common judgment passed by the Writ Court in
CWJC No. 9760 of 2005 and CWJC No. 3224 of 2005.
2. The two writ petitions were filed by the writ
Patna High Court LPA No.162 of 2016 dt.19-07-2017
3/35
petitioners-appellants, working in the Bihar State Beverage
Corporation Limited (hereinafter referred to as „the Corporation)
for a direction to the Corporation to grant them pay scale of 6th Pay
Revision with effect from 1.1.2006 notionally and the financial
benefit with effect from 1.4.2007. In CWJC No. 9706 of 2012 the
petitioners have also prayed for quashing of the resolution of the
Board of Directors dated 27.3.2012.
3. Both the writ applications were heard together and
vide judgment under appeal the Writ Court declined to issue any
direction to the respondent-Corporation for granting the benefit of
6th PRC. The writ Court also declined to interfere with the
resolution of the Board of Directors of the Corporation dated
27.3.2012whereby the Corporation decided to grant pay scale to the petitioners and others working in the Corporation on the basis of admissible pay scale to them prior to their appointment by way of deputation in the Corporation. In other words, the Writ Court approved the decision of the Corporation contained in the resolution dated 27.3.2012 whereby the Corporation decided different pay scale to its employees not on the basis of work and their responsibility they are discharging in the Corporation but on the basis of their pay scale revised or unrevised in the erstwhile Board/ Corporation from where they have been drawn to the Patna High Court LPA No.162 of 2016 dt.19-07-2017 4/35 service of the respondent-Corporation.
4. The writ petitioners in their writ applications pleaded that they have been drawn from different Boards and Corporations on the basis of the advertisement and selection process and after their appointment by way of deputation in the Corporation they are discharging the same duty and responsibility but the Corporation has adopted different pay for different employees working in the Corporation either on the basis of deputation or on the basis of contract notwithstanding the fact that all the employees working in the Corporation have joined the service of the Corporation on the basis of one and the same process of selection and advertisement and they are holding the same post, discharging the same duty and sharing the same responsibility.
5. The writ petitioners have placed on record advertisements dated 18.6.2006, 16.11.2006, 16.4.2008 and 23.7.2009 whereby the appointments have been made in the Corporation either on contractual basis or on deputation basis.
6. Adverting to the pleadings of the writ applications, it appears that the Corporation was incorporated as a Government Company under Section 617 of the Companies Act, as an extended arm of the Excise Department, Government of Bihar in the year 2006. In view of the policy decision of the State Government, the Patna High Court LPA No.162 of 2016 dt.19-07-2017 5/35 Corporation decided to make appointment only by way of contract or deputation of employees of the Board/Corporation or the State or Central Government on different posts including Manager, Accounts Officer, Accountant, Assistant Accounts, Depot Manager, etc. In the advertisement the Corporation mentioned the pay scale of different category of posts for which application was invited for appointment by way of deputation or contract basis. Appellants have been appointed on various posts in terms of the advertisement issued by the Corporation from time to time and their pay scale was fixed prevailing pay scale of the 5th PRC. The writ petitioners approached the High Court under Article 226 for granting the benefit of 6th Pay Revision Committee recommendation which was made available to the employees of the State Government with effect from 1.1.2006 notionally and monetary benefits with effect from 1.4.2007.
7. The petitioners/ appellants herein have submitted that they are entitled to the service condition at par with the Government servant as per the decision of the Corporation/ Board under Clause 65(5) of the Articles of Association as the Corporation has not framed its own rules and regulation to regulate service condition of its employees.
8. On behalf of the Corporation, a counter affidavit Patna High Court LPA No.162 of 2016 dt.19-07-2017 6/35 was filed in the writ application wherein the claim of the writ petitioners was disputed with reference to the provisions of Rules 282 and 283 of the Bihar Service Code. The Corporation also mentioned in the counter affidavit that the file relating to 6 PRC was sent by the M.D. of Corporation through parent department Excise and Prohibition to the Finance Department but the Finance Secretary observed "Revised Pay Scale is applicable only to those who are duly appointed employees of the Corporation. Deputed employees will get the pay which they were getting in their parent Department plus deputation allowances".
9. Counsel for the appellant has made manifold submission to assail the decision of the learned writ court including the dichotomy in the decision of the learned Single Judge inasmuch as the learned Single Judge on the one hand approved the decision dated 27.3.2012 which promotes discrimination with pay scale in the teeth of constitutional mandates of Articles 14 and 16, i.e. equal wages for equal work whereas the learned Single Judge deprecated the practice of grant of pay discriminatory scale based on the basis of pay scale paid by the parent employer. Mr. Vindyachal Singh, counsel for the appellants also highlighted that present is not a simple deputation but based on the policy decision and hence cannot be used a ground to deprive equal wages for equal work. Patna High Court LPA No.162 of 2016 dt.19-07-2017 7/35
10. Mr. Lalit Kishore, PAAG-1 supported the judgment and placed reliance on paragraphs 4,5,7 to 12 and Rules 282 and 283 of Bihar Service Code to support the resolution dated 27.3.2012.
11. The judgment of the learned Single Judge is in two parts, (1) The decision on the legality of the resolution dated 27.3.2012, (2) the issue of equal wages for equal work and discrimination in the pay scale and pay anomaly. Counsel for the appellant submitted that the learned Single Judge ignored the effect of the resolution dated 27.3.2012 which is highly discriminatory and as such violative of Articles 14 and 16 of the Constitution, i.e. equal wages for equal work and at the same time the learned Single Judge in the second part of the judgment deprecated the practice of discrimination in the matter of grant of pay and thus directly approved the decision dated 27.3.2012 but indirectly rejected the reasoning for decision dated 27.3.2012.
12. From the perusal of the judgment of the Single Judge it appears that on the basis of the pleadings on record the writ court noted that two things are absolutely clear. Firstly, that the Corporation came in existence in 2006 and it has started functioning and sought to fill up the different posts not by making any direct appointment from the open market but only by way of Patna High Court LPA No.162 of 2016 dt.19-07-2017 8/35 making contractual appointment and/ or appointment on deputation from on consideration of eligible persons working as regular employees of the Corporation. Secondly, the writ court noted that none of the petitioners are getting similar amount of salary while working on deputation in the Corporation and what they have been paid salary in the Corporation on the basis of salary paid in their parent Board or Corporation. The Writ Court after scrutiny of the advertisement issued by the Corporation for the purpose of appointment of the petitioners and others on deputation and also considering the counter affidavit filed on behalf of the Corporation and on consideration of the provisions of Rules 282 and 283 of Bihar Service Code held out that the resolution dated 27.3.2012 does not suffer from any infirmity and as such declined to interfere with the resolution dated 27.3.2012. The Writ Court held out that the decision of the Board of Directors dated 27.3.2012 was issued considering the resolution of the Finance Department as contained in letter dated 30.11.2011. The Writ Court after elaborate discussion of the scheme of the deputation under the Bihar Service Code, did not find fault in the resolution dated 27.3.2012, although the resolution in effect provide for different amounts of salary to different employees on the basis of their last salary drawn in the parent organization but at the same the learned Single Judge in so Patna High Court LPA No.162 of 2016 dt.19-07-2017 9/35 many words deprecated the practice of discriminatory pay scale to the employees working in the Corporation on the basis of the pay scale admissible in the parent employment. The judgment of the learned Single Judge in paras 35 to 41 is the discussion on principle of parity in pay scale for those discharging the same responsibility on the concept of equal pay for equal work. Paras 35 to 41 of the judgment is reproduced as under:
35. Having held so, this Court would still find one very disturbing feature, namely, that the Corporation, in view of getting services on deputation of the petitioners and others on different posts by applying principles of protecting their salary as was being paid to them by the parent employer, is in a way violating the concept of equal pay for equal work in the sense that for the same post say as for example for the post of Accountant, it has been paying different amount of salary to the different employees including the petitioners on account of their last salary drawn in their parent organization. It is true that the Corporation, in doing so, is only abiding by the terms and conditions of the deputation but, then, the Corporation, being a State within the meaning of Article 12 of the Constitution of India and definitely an arm and adjunct of the State Government as well as also being a model employer, has to pay the same salary for the same work by following the principle of equal pay for equal work.
Patna High Court LPA No.162 of 2016 dt.19-07-2017 10/35
36. This aspect, though not raised specifically by the petitioners in these writ applications, this court, on perusal of the records, would still find from Annexure- 11 being part of a supplementary affidavit in CWJC No. 9760 of 2012 containing comparative statement of pay of the petitioners and others that for the same post of Accountant, petitioner no.4 Naresh Kumar Mishra is being sought to be paid a sum of Rs. 10,950/- per month since 15.5.2012 in the pay scale of Rs. 1400- 2600 by way of his monthly salary whereas one Rekha Kumari working on the same post of Accountant is being paid a sum of Rs. 9553/- per month since 15.5.2012. Similarly, while Ramayan Singh also holding the post of Accountant is being paid a sum of Rs. 15358 of his monthly salary since 15.5.2012 whereas Bipin Kumar again working on that very post of Accountant is being paid Rs. 10499 peer month and Raj Kr. Ghosh another Accountant is being paid a sum of Rs. 12000/- by way of his salary w.e.f. 15.5.2012. This court understands that there could be such anomaly on account of their salary drawn in their parent organization but the question would be that if the Corporation has taken on deputation all five of them on the same post of Accountant and is taking the same work, can it be allowed to pay different pay for the same work? It is here that the concept of equal pay for equal work to the deputationist who were having common prescribed qualification in their advertisement and were supposed to be working in the Patna High Court LPA No.162 of 2016 dt.19-07-2017 11/35 prescribed pay-scale of Rs. 5500-9000 in revised pay scale and Rs. 1500-2750 is unrevised in their parent organization by way of its eligibility vide Advertisements of Corporation dated 20.8.2006 (Annexure-1), 18.11.2006 (Annexure-2A), 23.4.2008 (Annexure-2B) and 29.7.2009 (Annexure-2C) becomes conspicuously significant and relevant. Now if all the aforesaid five persons working in their parent organization on the post of Accountant were appointed on the post of Accountant in Corporation and are doing the same nature of work in Corporation, can they be paid different amount by way of their monthly salary.
37. The Apex Court in the case of M.P. Singh, Deputy Superintendent of Police & Ors. Vs. Union of India & Ors. reported in (1987) 1 SCC 592 while examining the plea of discrimination between the deputationist and non-deputationist in the matter of grant of higher special pay had gone to hold that nature of duty of deputationist and non-deputationist being the same, denial of special pay to the non-deputationist at par with the deputationist was impermissible and in fact violative of Article 14 and 16 of the Constitution of India. In this regard, it has held as follows:-
„10. From the foregoing discussion it emerges that the Special Pay that was being paid to all the officers in the cadre of Sub-Inspectors, Inspectors and Deputy Superintendents of Police in the Central Investigating Units of the Central Bureau of Patna High Court LPA No.162 of 2016 dt.19-07-2017 12/35 Investigation has nothing to do with any compensation for which the deputationists may be entitled either on the ground of their richer experience or on the ground of their displacement from their parent departments in the various States, but it relates only to the arduous nature of the duties that is being performed by all of them irrespective of the fact whether they belong to the category of the 'deputationists' or to the category of the 'non- deputationists'. That being the position. the classification of the officers working in the said cadres into two groups, namely, deputationists and non- deputationists for paying different rates of Special Pay does not pass the test of classification permissible under Articles 14 and 16 of the Constitution of India since it does not bear any rational relation to the object of classification."
38. The position in the present case is still better because here everyone is a deputationist and though for them the qualification and the required experience of being in a particular pay-scale as per terms and conditions was the same and even when they are performing the same nature of duty in the Corporation, they are being subjected to discrimination by way of payment of varying amount of monthly salary w.e.f. 15.5.2012. It may be possible that some deputationist who came later on by way of deputation in Corporation can draw lesser amount of salary but if the date of appointment of the two deputationists in Corporation is the same, both the deputationist, Patna High Court LPA No.162 of 2016 dt.19-07-2017 13/35 holding the same post and doing the same nature of work, shall be entitled for same payment of salary by invoking the doctrine of equal pay for equal work.
39. As a matter of fact, a similar issue of payment project compensatory allowance to the deputationist and the classification made by the State of Rajasthan to the employees of the State Government/State Electricity Board joining the project of Beas Construction Board at Chandigarh was examined by the Apex Court in the case of State of Rajasthan Vs. Gurcharan Singh Grewal & Ors. reported in 1990 Supplementary SCC 778 and it was held that there can be no classification in the matter of granting compensatory allowance to the deputationist on the basis of their date of joining in the Beas Project. The Apex Court in this regard had held as follows:-
"10. In the case of the employees who joined the Project after September 14, 1972, they had no option regarding the pay scale. The order granting compensatory allowance was also in force on September 14, 1972. There had been no indication in the proceedings dated February 8, 1973 that the employees who joined the project after September 14, 1972 should be given the option either to have the compensatory allowance or the terminal case benefit. If the employees who joined the Project before September 14, 1972 could exercise their option in the matter of compensatory allowance, there is no reasonable basis for denying that benefit of option to Patna High Court LPA No.162 of 2016 dt.19-07-2017 14/35 the employees who joined the Project after September 14, 1972. Even if they exercise the option for the compensatory allowance, they could not claim the cash benefits which would only be credited to the State Government and there will not be any additional burden for the State Government. The order denying the option is thus arbitrary and discriminatory treating differently the employees who had joined the Project after September 14, 1972 in the matter of exercising their option for the compensatory allowance or the terminal cash benefit. The payment of the compensatory allowance is not linked with the unified pay scale as argued for the appellant. It has been made clear in the orders reducing the rate of compensatory allowance that the employees would be entitled to receive the compensatory allowance at the reduced rate irrespective of their option to receive their pay in the unified pay scale."
40. Yet again, in the case of Food Corporation of India & Ors. Vs. Ashis Kumar Ganguly & Ors. reported in AIR 2009 SC 2582 again involving the payment of advance increment to the deputationist, the decision of the Food Corporation of India to grant one advance increment to the deputationist from the State Government (State Food Department) and denial of the same to the deputationist from the Central Government was held to be bad on the ground that it caused discrimination only on the basis of source of their deputation and thus impermissible. In this regard, Patna High Court LPA No.162 of 2016 dt.19-07-2017 15/35 the Apex Court had held as follows:-
"17. The deputationists were not the employees of the Corporation. They were still on the State Cadre. They became the employees only on their absorption. The circular letter inviting options stated so in unmistakable terms. 18. The learned Additional Solicitor General drew our attention to the statements made in the rejoinder affidavit to show as to how the Central Government employees were different from that of the State Government employees. Only because, according to the Corporation, they were treated differently, in our opinion, by itself cannot be a ground not to apply the rules applicable to the employees of the Food Corporation of India on their absorption in the services of the Food Corporation of India only because they have been taken from the different sources. Different treatments meted out to the respondents vis-a-vis the Central Government employees although drawn from separate cadre, for the purpose of grant of benefit to one class only, would, in our opinion, amount to discrimination."
41. Added to it, when the Corporation has adopted the provision of Bihar Service Code, it has to also abide by the provisions of Rule 78 which lays down the stepping up of the pay of an employee in the same post if someone junior to him is getting the higher pay. Such the concept of Rule 78 of the Bihar Service Code is in keeping with the Rule 22C of Fundamental Rules, Patna High Court LPA No.162 of 2016 dt.19-07-2017 16/35 being the mother of all service rules, itself envisages grant of Personal Pay Protection. In payment of salary to a senior person holding the same post so as to secure him the salary being paid higher amount of salary paid to a junior incumbent on the same post."
13. From the pleading it appears that the Finance Department advised Corporation to grant the benefit of 6th pay revision committee to only the employee of the Corporation and not the person working in the Corporation on deputation. The Corporation in its counter affidavit in para-12 a page 11 stated that since the Corporation had no regular employee of its own, the said resolution was, thus rendered infructuous.
It has been contended on behalf of the appellants that the advice of the Finance Department is fallacious. Firstly, in the Corporation there is no regular employee either directly recruited or appointed by way of promotion. Every employee working in the Corporation is either on deputation or on contractual basis. Secondly adopting two standards for grant of benefit of revised pay scale is violative of Articles 14 and 16 of the Constitution. The Apex Court has always deprecated the action of granting benefit of revised pay scale to some and deny to others as violative of Articles 14 and 16.
Patna High Court LPA No.162 of 2016 dt.19-07-2017 17/35 It may not be out of place to mention here that the Apex Court in the case of R.D. Shetti Vs. International Airport Authority reported in AIR 1979 SC 1628 held out that State cannot act arbitrarily even in the matter of distribution of largess and bounty. If the State cannot act arbitrarily even in the matter of grant of largess and bounty according to its sweet will then by the same standard, the instrumentality of the State like the respondent Corporation cannot adopt two standard saying that it can grant benefit of pay revision to some employee working in the Corporation and deny the same to the other employee who are working in the Corporation irrespective of the fact that every employee working in the Corporation have been drawn in the service of the Corporation on the basis of the same advertisement and selection process and performing the same duty and discharging the same responsibility only on the basis of pay scale paid to such employee in the parent Board/Corporation where from they have been selected on deputation and presently working in the Corporation.
14. The resolution dated 27.3.2012 was issued purportedly on the basis of letter dated 30.11.2011 hence it would be appropriate to examine the content and context of letter dated 30.11.2011. The letter dated 30.11.2011 of the Finance Department Patna High Court LPA No.162 of 2016 dt.19-07-2017 18/35 and the relevant part of the Resolution dated 27.3.2012 are quoted hereinbelow:
Letter dated 30.11.2011 "i= la[;k&42@yks0m0iz0&39@11 281 @fo0 fcgkj ljdkj foRr foHkkxA iVuk ] fnukad 30@11@11 izs"kd] v'kksd fiz;n'khZ mi lfpo] foRr foHkkxA lsok esa] iz/kku lfpo@lfpo] lHkh jktdh; yksd miØeksa ds iz'kklh foHkkxA fo"k; & jktdh; yksd miØe dfeZ;ksa ds lsok fuo`fr dh vk;q fu/kkZj.k ,oa izfrfu;qfDr vkns'k dh leh{kk ds laca/k esaA egk'k;] funs'kkuqlkj mi;qZDr fo"k; ds laca/k esa lwfpr djuk gS fd foRr foHkkx ds i=kad 177 fn0 21-10-2008 ftauds }kjk fu.kZ; fy;k x;k gS fd jkT; ljdkj flQZ mUgh fuxe dfeZ;ksa dh lsok fuo`fr dh vk;q 58 o"kZ ls c<kdj 60 o"kZ djsxh tks fuxe yxkrkj 5 o"kZ ls ykHk esa py jgsa gksa vkSj ftldh ladfyr gkfu lekIr gks pqdh gks ysfdu fopkjk/khu foUnq ;g gS fd ekuuh; mPPk U;k;ky;
iVuk ds }kjk fuxe dfeZ;ksa dh lsok fuo`fr dh vk;q 58 o"kZ ls c<kdj 60 o"kZ mu jktdh; yksd miØeksa esa Hkh tk jgh gS tks fujUrj ?kkVs esa gS vkSj liquidation Process esa gSA ekuuh; mPPk U;k;ky;] iVuk dk fu.kZ; dk vk/kkj fuxe ds funs'kd i"kZn ds }kjk fcgkj lsok lafgrk dk T;ksa dk R;ksa fuxe dfeZ;ksa dh lsok lafgrk ds :Ik esa Lohdkj dj ysuk gSA bl laca/k esa fuxe ds funs'kd i"kZn ds }kjk lsok fuo`fr dh vk;q 60 o"kZ ls ?kVkdj 58 o"kZ dj la'kks/ku izLrko dk fu.kZ; ugh fy;k tkrk gS rc rd fuxe dehZ viuh lsok fuo`fr dh vk;q 60 o"kZ dh mez rd dk nkok djrs jgsaxsaA pawfd fuxe dEiuh vf/kfu;e ds rgr xfBr vkSj dk;Zjr gS] blfy, jkT; ljdkj dk fu.kZ; fuxe esa funs'kd i"kZn ds ek/;e ls ykxw gksxkA ,slk n`"Vkar Hkh foRr foHkkx ds le{k vk jgsa gSa fd ftlesa fuxe dehZ ftudh izfrfu;qfDr jkT; ljdkj ds fofHkUu foHkkxksa esa fjDr inksa ij fd;k x;k gS mUgsa 58 o"kZ dh vk;q iwjh djus ds i'pkr iSr`d foHkkx esa okil gks tkuk pkfg, ysfdu os 60 o"kZ rd u dsoy dk;Z dj jgsa gSa cfYd ,d yEch vof/k rd jkT; ljdkj ds fofHkUUk foHkkxksa esa dk;Z djus ds ,ot esa viuh lsok dks jkT; Patna High Court LPA No.162 of 2016 dt.19-07-2017 19/35 ljdkj laoxX esa fu;ferdj.k dk nkok dj jgsa gSa vkSj ekuuh; mPp U;k;ky; ds }kjk muds i{k esa vkns'k Hkh ikfjr gks jgsa gSa dbZ dfeZ;ksa dk lek;kstu fd;s fcuk gh mudk Hkfo"; fuf/k dk ys[kk vkoafVr gks x;k gS vkSj muesa ekgokj dVkSrh gks jgh gSA mi;qZDr ifjiz{; esa ;g vko';d izrhr gksrk gS fd jkT; ljdkj ds fofHkUu foHkkxksa esa izfrfu;qfDr fuxe dfeZ;ksa dks izfrfu;qfDr ds vkns'k dh lesfdr :i ls leh{kk dh tk; os lle; vius iSr`d foHkkx esa okil gks tk;saA bl laca/k esa lHkh yksd miØeksa ds iz'kklh foHkkx ds iz/kku lfpo ls vuqjks/k fd;k tkrk gS fd os vius fu;a=.kk/khu yksd miØeksa ds funs'kd i"kZn dh cSBd esa izfrfu;qDr vkns'k@lsok 'krZ ds laca/k esa lE;d fu.kZ; ysaA fo'oklHkktu g0@ ¼v'kksd fiz;n'khZ½ ljdkj ds mi lfpo] yksd miØe iz'kk[kk] foRr foHkkxA"
Resolution dated 27.3.2012.
3
30&08 [k½ foÙk foHkkx ds i=kad izLrqr rF; fooj.kh dh
la[;k 42@yks- m- leh{kk ds mijkar funs'kd
iz&39@11@281@ fo- i"kZn }kjk fu.kZ; fy;k
fnukad 30@11@11 ds x;k fd fcgkj LVsV
vkyksd esa izfrfu;qfDr fcojstst dkWjiksjs'ku
vkns'k dh leh{kk gsrq fyfeVsM esa izfrfu;qDr
izLrko ij fu.kZ; ds dfeZ;ksa dks muds iSr`d
laca/k esaA fuxe esa ns; osrueku
izfrfu;qfDr HkÙkk ds lkFk
fn;k tk,A
(emphasis added)
15. The pivotal issue involved in both the appeals is whether granting different pay scale to employees working in the Corporation performing the same work and discharging the same responsibility is violative of equal wages for equal work or not? If it is violative of equal wages for equal work, then whether Patna High Court LPA No.162 of 2016 dt.19-07-2017 20/35 resolution dated 27.3.2012 is sustainable in law or not?
16. The learned writ court while deciding the writ application has laid emphasis on the counter affidavit wherein the respondent-Corporation has explained and submitted justification for adopting different pay scale for different employees discharging the same responsibility on the basis of Rules 282 and 283 of the Bihar Service Code and reason for denial of benefits of 6th PRC to the petitioners. Rules 282 and 283 of the Bihar Service Code relates to the deputation of the Government servant transferred to foreign service and other concession admissible to a Government servant transferred to foreign service. Rule 282 and 283 are quoted below.
"282. A Government servant transferred to foreign service shall draw, pay from the foreign employer from the date on which he relinquishes charge of his post in Government service. Subject to the provisions of Rule 283 and to any restrictions which the State Government may by general order impose the amount of his pay, the amount of joining time admissible to him, and his pay during such joining time shall be fixed by the authority sanctioning the transfer in consultation with the foreign employer,"
283. (a) The pay which a Government servant is to receive in foreign service shall be precisely specified in the order sanctioning his transfer. If Patna High Court LPA No.162 of 2016 dt.19-07-2017 21/35 it is intended that he shall receive any remuneration, or enjoy any concession of pecuniary value, in addition to pay proper, the exact nature of such remuneration, or concession shall be similarly specified; and no Government servant shall be permitted to receive any remuneration or to enjoy any concession which is not to be so specified.
(b) In determining an appropriate rate of pay, the authority sanctioning a transfer to foreign service, shall take into account the value of any concessions which the Government servant may be permitted to enjoy, such as -
(i) The payment by the foreign employer of contributing towards, leave salary and pension;
(ii) the grant of free residential accommodation and any benefits or advantages connected therewith; and
(iii) the grant of traveling allowance at special rates, and the use of tents, conveyances, animals etc, belonging to the foreign employer.
(c ) The terms granted to a Government servant who is transferred to foreign service shall not be so greatly in excess of remuneration which he would receive in Government service, as to render foreign service appreciably more attractive than Government service.
(d) No order of transfer to foreign service shall be issued by the State Government without Patna High Court LPA No.162 of 2016 dt.19-07-2017 22/35 previous consultation with the Finance Department.
(e) In cases where the power to sanction such transfer has been delegated to a subordinate authority, the initial pay of the Government servant transferred shall not, without the special orders of the State Government, exceed by more than 25 percent, the substantive pay last drawn by him in Government service and no concessions in addition to pay shall be sanctioned except the following:-
(i) the payment by the foreign employer of contributions towards leave salary and pensions; and
(ii) the grant of traveling allowance on the scale prescribed in the Bihar Travelling Allowance Rules."
17. A careful reading of the contents and context of the letter dated 30.11.2011 and the resolution dated 27.3.2012 any prudent man can understand that the letter dated 30.11.2012 was only in relation to age of superannuation and review of the decision of deputation and not on the issue of either grant of 6th PRC or decision or direction to adopt different pay scale discharging same duty and responsibility by employees working in the Corporation. Reading the context of the said letter dated Patna High Court LPA No.162 of 2016 dt.19-07-2017 23/35 30.11.2011, it is apparent that the letter dated 30.11.2011 was neither issued in the context of 6th PRC nor it refers to Rules 282 and 283 of the Bihar Service Code.
18. From perusal of the resolution dated 27.3.2012, it is evidently clear that the resolution in effect admits different pay scale for different employees working in the Corporation discharging the same responsibility notwithstanding that the employees working in the Corporation have been drawn on the basis of same selection process on the basis of the same advertisement and all those working in the Corporation are discharging the same duty and sharing the same responsibility. Thus, the resolution dated 27.3.2012 on its face value offends Articles 14 and 16 of the Constitution and as such it is unseasonable and is discriminatory and its effect is catastrophic being hostile discrimination between the employees working in the Corporation only on the ground of difference of pay scale revised or unrevised in the parent Board or Corporation.
19. After thoughtful consideration of the submissions of the appellants I find substance in their submissions that the resolution dated 27.3.2012 is purportedly based on the decision of the letter dated 30.11.2011 but the letter dated 30.11.2011 was issued in a different context alien to the issue of grant of benefit of Patna High Court LPA No.162 of 2016 dt.19-07-2017 24/35 6th PRC. In fact the said letter was issued in the matter of age of superannuation and regularization as discussed above and as such the reliance placed on the counter affidavit to support the resolution dated 27.3.2012 is misplaced. The submission of the appellant in this regard is well founded and based on the principle decided by the Apex Court in the case of Mohinder Singh Gill & anr. Vs. The Chief Election Commissioner, New Delhi & Ors.:
AIR 1978 SC 851 (= (1978) 1 SCC 405 that public order publicly made cannot be supplemented by the affidavit.
Thus the learned Single Judge wrongly relied upon the explanation of the respondents set out in the counter affidavit to support the decision dated 27.3.2012 instead of reading the resolution dated 27.3.2012 in the light of letter dated 30.11.2011.
20. Moreover, one must keep in mind that there is difference between the role of State and its instrumentality and the individual. Admittedly, the petitioners-appellants were not engaged by the individual as domestic help, on the basis of individual bargaining taking advantage of better bargaining position, hence the Corporation being the State cannot subject the petitioner- appellants to arbitrary and unreasonable condition of service in teeth of Articles 14 and 16. Equal wages for equal work is not an abstract doctrine but of substance. It is one of the facets of equality Patna High Court LPA No.162 of 2016 dt.19-07-2017 25/35 enshrined under Articles 14 and 16 of the Constitution.
21. Undisputedly in service jurisprudence equal wages for equal work has been recognized as integral part of Articles 14 and 16 of the Constitution of India. The judgment of the Apex Court in the case of State of Punjab & Ors. Vs. Jagjit Singh & ors. (2017) 1 SCC 148. is the latest expression and articulation on the aforesaid point.
22. Adverting to the second reasoning for approving resolution dated 27.3.2012, admittedly the petitioners-appellants were not the Government servant but they were the employee of different Board and Corporation before their services were taken on deputation in the respondent-Corporation. Hence the Rule which is applicable to the Government servant on deputation in the matter of payment and other concession admissible during foreign service to a Government employee is not applicable to the employees of the Board and Corporation as they are not the Government servant. This provision is relatable to the other categories of the employees who were drawn from the State Government or the Central Government on deputation in the Corporation. However, the writ court proceeded on the basis that Corporation being a foreign employer can avail service on contract basis or deputation basis or return the services of the deputationists to the parent department Patna High Court LPA No.162 of 2016 dt.19-07-2017 26/35 and the deputationists cannot claim other than deputation allowance in addition to the pay scale admissible to them in the erstwhile Board or Corporation. The writ Court in order to reject the claim of the writ petitioners-appellants herein scrutinized the condition of advertisement and on the basis of construction of the advertisement held out that the writ petitioners were never represented by the office of the Corporation that they shall be paid the pay or emoluments on appointment in definite pay scale although the writ court has noted in para-19 that on the different orders the Managing Director of the Corporation granted pay scale apart from the admissible pay scale in the erstwhile organization but other allowance which was admissible to the employees in the Government from time to time. However, the learned writ court held out that the decision of the Managing Director is neither binding on the Board of Directors nor creates any precedent for condition of their employment.
23. In my considered view the writ Court while upholding the resolution dated 27.3.2012 has committed error in construing the terms of advertisement, Col. 4 of the Advertisement and the condition appended to the advertisement and the conditions incorporated in para-4 of the advertisement and the condition appended at the bottom of the advertisement was only eligibility Patna High Court LPA No.162 of 2016 dt.19-07-2017 27/35 condition for the purpose of scrutiny and selection and the reference of pay scale in col. 4 of the advertisement was the requirement of submission of certificate including LPC, such certificate was required only for the purpose of the eligibility in the selection and it cannot be construed as the determination of pay scale as otherwise fixing different pay scale for different employees selected through the same advertisement and selection process is unconstitutional being violative of Articles 14,16 and 18 of the Constitution as such unsustainable in the eye of law.
24. Once the writ court held out that pay scale for discharging same responsibility is violative of Articles 14 an 16, there is absolutely no reason to sustain the resolution dated 27.5.2012 Thus, I am of the considered view that the resolution dated 27.5.2012 is unsustainable being violative of Articles 14 and 16 of the Constitution of India as it leads to hostile discrimination and the Corporation cannot adopt different pay scale to its employees for discharging the same duty and responsibility.
25. So far as the claim of the writ petitioner- appellants for a direction to the respondents to grant the benefit of 6th pay revision committee is concerned, the same was rejected by the Corporation on the objection of the Finance Department, the writ Court has noted the stand of the Corporation in para-12 of the Patna High Court LPA No.162 of 2016 dt.19-07-2017 28/35 counter affidavit. It has to be noted here that the Finance Department raised objection to resolution dated 18.5.2010 to the effect that the benefit of 6th pay revision could only be extended to this Corporation own employee and not to employees working on deputation in this Corporation since only principal employer can extend such benefit to them and the deputatinists are not regular employees and as such they are only entitled to the benefits under the provisions of Rule 282 and 283 of the Bihar Service Code. It is reiterated here that in 2006 itself while the Corporation was incorporated as Government Company, a policy decision was taken not to make any regular appointment in the Corporation and as such, the objection of the Finance Department that the benefits of 6th pay revision can only be granted to the employees of the Corporation appears to be a decision without application of mind. In addition thereto if the Corporation has to grant the benefit of 6th pay revision to its employees and deny the benefits to the deputationist drawn from the service of the State Government or Central Government and other drawn from different Board and Corporation and grant different pay scale only on the ground that the Board and the Corporation from where they have been drawn in the present Corporation they have not been granted the revised pay scale as their parent employer. The learned writ court has not taken Patna High Court LPA No.162 of 2016 dt.19-07-2017 29/35 note of the ground reality in proper perspective that the Board and Corporation from where the appellants have come on deputation are virtually on the verge of closure and taking note of the condition of the current Board and Corporation fixing differential pay scale for the appellants and others will amount to adopting unconstitutional terms and conditions which are unsustainable and deprecated as such by the Apex Court in the case of Central Inland Water Transport Corporation Vs. Brojo Nath Ganguly & anr.: AIR 1986 SC 1571 = 1986 LAB.I.C.1312. Reference in this regard may also be made to the judgment of the Constitution Bench of the Apex Court in the case of Purushottam Lal Vs. Union of India: AIR 1973 SC 1088 and Laljee Dubey & Ors. Vs. Union of India & others: AIR 1974 SC 252 wherein the Apex Court held out the decision to grant benefit of pay revision to some and denial to other as violation of the mandate of Articles 14 and 16 of the Constitution of India. The latest judgment of the Apex Court reported in (2017) 4 SCC 449 (Mahatma Gandhi Mission V. Bhartiya Kamgar Sewa) is also on the same line. The Apex Court did not approve the action of granting pay revision to teaching employee and denying the benefits to non-teaching employee even on pleading financial constraints.
26. Thus, in my considered view, the action of the Patna High Court LPA No.162 of 2016 dt.19-07-2017 30/35 Corporation including the resolution dated 27.3.2012 does not stand the test of reasonableness and it is per se arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution and as such is unsustainable in the eye of law.
27. Since the writ petitioners-appellants have been appointed by way of advertisement and by following selection process and they are discharging the same responsibility and continued like other employees, the writ petitioners-appellants herein are entitled to similar pay scale like other employees and as such the resolution dated 27.5.2012 which provide discriminatory pay scale is unsustainable.
28. The Apex Court has recently in the case of State of Punjab & Ors. Vs. Jagjit Singh & ors. (2017) 1 SCC 148, after considering all the judgment on the line of equal wages for equal work, has issued guidelines for employer to follow in the matter of granting equal pay for equal work paras 57, 58 and 59 are quoted herein below:
57. There is no room for any doubt that the principle of "equal pay for equal work" has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same Patna High Court LPA No.162 of 2016 dt.19-07-2017 31/35 is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle have been summarized by us in paragraph 42 hereinabove.
The principle of "equal pay for equal work" has also been extended to temporary employees (differently described as work-charge, daily- wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again.
58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another who performs the same duties and responsibilities. Certainly not, in a welfare State. Such an action besides being demeaning, strikes at the very foundation of human dignity. Anyone, who is compelled to work at a lesser wage, does not do so voluntarily. He does so to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows that his dependents would suffer immensely, if he does not accept the lesser wage. Any act of Patna High Court LPA No.162 of 2016 dt.19-07-2017 32/35 paying less wages as compared to others similarly situate constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation.
59. We would also like to extract herein Article 7, of the International Covenant on Economic, Social and Cultural Rights, 1966. The same is reproduced below:-
"7. The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present Covenant;
Patna High Court LPA No.162 of 2016 dt.19-07-2017 33/35
(b) Safe and healthy working conditions;
(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;
(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays."
India is a signatory to the above covenant, having ratified the same on 10.4.1979. There is no escape from the above obligation in view of different provisions of the Constitution referred to above, and in view of the law declared by this Court under Article 141 of the Constitution of India, the principle of "equal pay for equal work" constitutes a clear and unambiguous right and is vested in every employee - whether engaged on regular or temporary basis.
29. In my view the learned writ court has committed error of jurisdiction in not protecting the appellants in the matter of denial of equal wages for equal work enshrined under Articles 14 and 16 of the Constitution of India against the arbitrary and Patna High Court LPA No.162 of 2016 dt.19-07-2017 34/35 discriminatory service condition being the Constitutional Court. Justice Mathew has observed in Bennett Coleman & Company & Ors. Vs. Union of India & Ors.: (1972) 2 SCC 788 about the duty of Constitutional Court. Para 163 in this regard is worth quoting.
"163. The crucial question today, as regards Article 14, is whether the command implicit in it constitutes merely a ban on the creation of inequalities by the State, or, a command, as well, to eliminate inequalities existing without any contribution thereto by State action. The answer to this question has already been given in the United States under the equal protection clause in the two cases referred to, in certain areas. The U.S. Supreme Court, in effect, has begun to require the State to adopt a standard which takes into account the differing economic and social conditions of its citizens, whenever those differences stand in the way of equal access to the exercise of their basic rights. It has been said that justice is the effort of man to mitigate the inequality of men. The whole drive of the directive principles of the Constitution is toward this goal and it is in consonance with the new concept of equality. ......"
30. Accordingly, both the appeals are allowed. Resolution dated 27.3.2012 is quashed, the judgment of the Single Patna High Court LPA No.162 of 2016 dt.19-07-2017 35/35 Judge is set aside and the respondent-Corporation is directed to follow the principle of „equal wages for equal work‟ in the matter of grant of pay scale and the pay revision in terms of 6th PRC and resolution of the Board of Director dated 18.5.2010.
(Anil Kumar Upadhyay, J.)
Rajendra Menon, CJ. - I Agree.
S.Pandey/-
(Rajendra Menon, CJ. )
AFR/NAFR AFR
CAV DATE 10.07.2017
Uploading Date 20.07.2017
Transmission
Date