Gauhati High Court
Kuladhar Kalita And 12 Ors vs The State Of Assam And 2 Ors on 10 February, 2022
Page No.# 1/17
GAHC010016052014
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/5147/2014
KULADHAR KALITA and 12 ORS
S/O BHUMIDHAR KALITA, R/O VILL- ANANDAPUR C BLOCK, P.O.
DIGHALDONGA P.S. BORBORI, DIST. BAKSA BTAD, ASSAM.
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMMISSIONER AND SECRETARY, HOME B DEPARTMENT,
DISPUR, GUWAHATI- 781006, ASSAM.
Advocate for the Petitioner : MR. B SARMA
Advocate for the Respondent : GA, ASSAM
Linked Case : WP(C)/282/2021
PARTHA SARATHI DEB AND 7 ORS
S/O- PRABIR KUMAR DEB
R/O- SOUTH BASISTHA ROAD
BL ROAD
DIST.- KAMRUP (M)
GHY-29
E-MAIL ID- [email protected]
PH- 9957071427
2: RUHUL AMIN KHAN
S/O- JEHIR KHAN
R/O- NO 1 DOLABARI
TEZPUR
Page No.# 2/17
DIST.- SONITPUR
PIN- 784001
E-MAIL ID- OFFICERUHUL@GMAILCOM
PH- 8638182597
3: UDIPTA TALUKDAR
S/O- DR K.C.TALUKDAR
R/O- ASSAM AGRICULTURAL UNIVERSITY CAMPUS
DIST.- JORHAT
PIN- 785013
EMAIL ID- [email protected]
PH- 9864702303
4: PRANJIT KALITA
S/O- LT. BIPIN KALITA
R/O- SARIHA CHALLA
PATARKUCHI
DIST.- BAJALI
PIN- 781326
EMAIL-ID- [email protected]
PH- 8638102223
5: JOYDEEP DAWDUNG LANGTHASA
S/O- SUDHIR DAWDUNG LANHTHASA
R/O- VILL- SINGJURI
SHYABARI
DIST.- HOJAI
LANKA
PIN- 781029
E-MAIL ID- [email protected]
PH- 9127072351
6: MANALI DAS
D/O- LT. DEBEN CHANDRA DAS
R/O- VIDYA MANDIR PATH
BARSAJATI LALMATI
DIST.- KAMRUP (M)
GHY-17 EMAIL ID- [email protected]
PH- 9435164083
7: ROOPJYOTI TAYE
S/O- L.N.TAYE
R/O- NAUSHALI GAON
NEFA TINIALI
ROWRIAH
PIN- 785005
E-MAIL ID- [email protected]
PH- 9864905777
Page No.# 3/17
8: SATYA BRATA DAS
S/O- PRAFULLA CHANDRA DAS
R/O- VILL- KALAPOOL
BINNAKANDI TEA ESTATE
DIST.- CACHAR
PIN- 788126
E-MAIL ID- [email protected]
PH- 9707377169
VERSUS
THE STATE OF ASSAM AND 2 ORS
REP. BY THE COMM. AND SECY. HOME (B) DEPTT.
DISPUR
GHY-06
ASSAM
2:THE COMM. AND SECY.
FINANCE (PRU) DEPTT.
DISPUR
GHY-06
ASSAM
3:THE DIRECTOR GENERAL OF CIVIL DEFENCE AND COMMANDANT
GENERAL OF HOME GUARDS
BELTOLA
GHY-28
ASSAM
------------
Advocate for : MR. S. DUTTA Advocate for : SR. GA ASSAM appearing for THE STATE OF ASSAM AND 2 ORS BEFORE THE HON'BLE MR JUSTICE ARUN DEV CHOUDHURY For the Petitioners : Mr. UK Nair, Senior Advocates For the Respondents : Mr. P Nayak, SC Finance, Mr. DP Borah, Advocate Date of Hearing : 20.01.2022 Page No.# 4/17 Date of Judgement :10.02.2022 JUDGEMENT & ORDER (CAV) Heard Mr. UK Nair, learned Senior counsel assisted by Mr. BS Sinha, learned counsel for the petitioners.
1. The grievances raised in this writ petition are under:
(i) The petitioners who were Class-II Officers of the Home Guard Services are aggrieved by the action on the part of the respondent authorities down grading their scale of pay in comparison to their counterparts in APS Juniors Grade Officers under the Government of Assam.
(ii) According to the petitioners, Class-II cadre in the Home Guard Service comprises of post of Assistant Commandant of Industrial Security Force and Assam Special Reserve Force, District Home Guard Commandant and Centre Commandant of District Home Guard Training Centre. According to the petitioners, their counter part and equivalent in Assam Police is the cadre of APS Junior Grade which comprises of post of Assistant Commandant of Battalion, Deputy Superintendent of Police.
(iii) It is the case of the petitioners that since the inception of the two services there has been equality with regard to the status, rank and scale of pay between the aforesaid posts in two cadres. According to the petitioners, both cadres are Page No.# 5/17 performing duties and responsibilities similar in nature.
(iv) The petitioners contend that till 2006, since the inception the two cadres were at per so far relating to their scale of pay.
However, with the implementation of 6th Assam Pay Commission, 2006 there is disequilibrium between various posts figuring in two cadres. According to them, the post of APS Junior Grade was given higher scale of pay in pay band IV. Being situated thus, the petitioners preferred representation raising such anomalies and claimed rectification of such anomalies.
(v) According to the petitioners, such anomalies were also raised by the Senior Staff Officer, Home Guard (G) in the office of the Director General, Civil Defense and Commandant General of Home Guard, Assam.
(vi) The petitioners are aggrieved by the order dated 17.12.2013, whereby and whereunder the claim of the petitioners were rejected on the ground that as the post of Class-II Officers of Assam Home Guard is not recruited through the Combined Civil Service Examination, therefore, the Government cannot agree to the proposal of giving similar scale of pay as that of APS Grade-II. Such order dated 17.12.2013 is impugned in the present writ proceeding.
2. Submission of the learned Senior counsel for the pettiioners:
(i) The ground for rejection has no legs to stand, submits Mr. UK Nair, learned Senior counsel. According to him, the Page No.# 6/17 ground of rejection cited by the respondent authorities is totally misconceived. To substantiate such submission, Mr. Nair refers to the Annexure-A of the affidavit-in-opposition filed by the Department of Finance. Said annexure is a part of one man committee report which according to Mr. Nair, was constituted for taking a decision on the anomalies in determination of scale of pay among different posts under Combined Civil Services. According to Mr. Nair, there was an anomaly in the scale of pay within different Combined Civil Services i.e. between the Superintendent of Taxes, District Transport Officer etc and Labour Officer and Superintendent of Excise, Assistant Registrar of Co-Operative Society inasmuch as the formers were given pay band 4 whereas the later were not given pay band 4. Therefore, such anomaly was recommended to said one man committee and said one man committee came to a conclusion that since those were recruited under the same selection process and they were under the same Grade i.e. APS Junior Grade, therefore, there should not be any disparity in scale of pay between them and accordingly it was recommended that the letter be also placed in pay band 4.
(ii) According to Mr. Nair, such decision in no way reflects anything on the claim of the petitioners inasmuch as the issue before the said committee was not relating to the disparity of scales of pay between the petitioners and their counterpart in Assam Police i.e. APS Junior Grade-II. Therefore, the entire Page No.# 7/17 reason of the respondent authorities is misconceived and is liable to be rejected and the writ petition should be allowed.
3. Contention of the respondent No. 3:
(i) The respondent No. 3 by way of filing an affidavit, submitted that, vide Annexure-A of the affidavit-in-opposition, the authority in the Director General of Civil Defense and Commandant General of Home Guard had strongly recommended before the Home (B) Department for restoration of pay parity of Class-II officers of Home Guard and with that of APS Junior Grade. Thus, the respondent No. 3 has supported the claim of the writ petitioners.
4. Contention of the respondent No. 2:
(i) The respondent No. 2 by filing an affidavit contended that the Assam Pay Commission recommended that all the posts which are filled up through civil service examination conducted by APSC is placed in pay band 4 with grade pay as Rs. 5400. Accordingly, the APS Junior is placed at pay band 4 with grade pay of Rs. 5400. The posts which are recruited through the APSC but not through Combined Competitive Civil Service Examination conducted by APSC are not allowed grade pay of Rs. 5400. As the petitioners are not recruited through the Combined Competitive Civil Service Examination, they are not entitled for the grade pay of Rs. 5400 and there is no scope for consideration of the proposal of the grade pay of Class-II Officers of Home Guard. In support of such Page No.# 8/17 contention, the learned counsel for the respondent refers to the Annexure-A, which is a part of report of the one man committee.
(ii) It is also contended that the Finance Department did not agree to the proposal by which the grade pay of Class-II Officers of Home Guard were sought to be brought to pay band 4 with grade pay of Rs. 5400 and accordingly was rejected the same.
(iii) It is also contention of the Finance Department that the pay scale cannot be qualification driven only. It is a case of the respondent No. 2 that the Pay Commission itself in clause 5 of chapter 10 of report recommended that the scales of pay cannot be qualification driven only, duties and responsibilities of jobs, mode of recruitment including holding of competitive examination etc are more important criteria.
5. Submission of the learned counsel of the Finance Department:
(i) The finance department through its under Secretary (Pay Research Unit) has filed an affidavit-in-opposition supporting the impugned action of the State respondents. The basic stand taken is that the Pay Commission has recommended that all posts which are filled up through Civil Service Examination conducted by APSC is placed at pay band 4 with grade pay of Rs. 5400/-. According to the said affidavit, Assam Police Service Junior is placed in pay band 4 with grade pay of Rs. 5,400/-. It is further pleadings of the State that the Page No.# 9/17 posts which are recruited through Assam Public Service Commission but not through Combined Competitive Civil Service Examination conducted by the Assam Public Service Commission are not allowed grade pay of Rs. 5,400/-. As the petitioners are not recruited through the Combined Civil Services Examination, the petitioners are not entitled for grade pay of Rs. 5,400.
(ii) It is also the stand of the State respondents in finance department that a Three men committee was constituted by Government to examine the report of Assam Pay Commission 2008, suggested the posts which are filled up along with ACS through Combined Competitive Civil Services Examination by APSC may be placed on pay band 4 with grade pay of Rs. 5,400/- It is the further case of the finance department that since the posts of Class-2 Officers of Assam Home Guard are not recruited through the Combined Civil Services Examination by the APSC, there is no scope for consideration of the proposal for enhancement of grade pay of Class-2 officers of Home Guard. The finance department also taken stand that the anomaly committee did not recommend pay parity as claimed by the petitioners rather suggested the Home Department to satisfy about the need if any for doing so and move finance department with detail justifications.
(iii) In support of the said contention the State has relied upon the decision of the department which was communicated to the Home Department through endorsement dated Page No.# 10/17 26.11.2013 (U/O No. FPC.74/2013) (annexure C) to the affidavit-in-opposition. At paragraph 7 of the affidavit-in- opposition, the State respondents in finance department has taken a stand that the pay commission itself has observed while giving general recommendation that pay scales cannot be qualification driven only duties and responsibility of jobs, mode of recruitment including holding of competitive examination etc. are more important criteria.
6. Mr. P Nayak, learned standing counsel for the finance department while relying on the pleadings made in the affidavit in opposition dated 08.10.2019 further argues that:
(i) The petitioners have failed to show clear cut basis of their equivalents with the APS junior grade and therefore as a matter of right they cannot claim parity of scale of pay. In support, he relies on the decision of the Hon'ble Apex Court reported in (2003) 6 SCC 123 (State of Haryana and another vs. Tilak Raj and Others).
(ii) There is no wholesales identity between the Home Guards Junior Grade-2 and APS Junior Grade.
(iii) Granting of scale of pay is a purely executive function and therefore this court in exercise of its power of judicial review may not like to interfere with the decision of the State in the finance department moreso in view of the findings of the one man committee as stated in his affidavit-
in-opposition. In support of such submission, Mr. Nayak Page No.# 11/17 relies (2008) 11 SCC 66 and (2007) 8 SCC 279.
(iv) The nature of duties and responsibilities of the Deputy Superintendent of Police and Class-2 Officers of Home Guard are not similar and petitioners have failed to substantiate clear cut basis of equivalents and resulting discrimination. In his support, he relied on the ratio of case reported in (2003) 6 SCC 123 and (2011) 11 SCC 122 (Steel Authority of India Limited and others vs Dibyendu Bhattacharya).
(v) The petitioners have failed to produce any material before the court to adjudicate upon the complicated issue of pay parity which needs factual determination. In his support, he relies on the decision of Hon'ble Apex Court reported in (1989) 2 SCC 235 (Mewa Ram Kanojia vs All India Institute of Medical Sciences and Others) . He argues that pay commission is an expert body and has determined the pay scales taking note of different criteria including procedure of recruitment, the nature of jobs its complexity etc. therefore this court in exercise of its power of judicial review should not interfere with the decision of such an expert body. Regarding the submission of the petitioner that since the inception there have been parity between the posts of DSP and Class-2 Officers of Home Guard with regard to pay, it is submitted that mere fact that an earlier point of time two posts were carrying the same pay scale does not mean that after implementation or Page No.# 12/17 revision in pay scale they should necessarily have the same revised scale of pay. In his support, he relies on the decision of the Hon'ble Apex Court reported in (2010) 5 SCC 225 (State of West Bengal and another vs. West Bengal Minimum Wages Inspectors Association and others).
7. Reply submission by Mr. Nair, learned Senior counsel:
(i) The two groups has been recognized and accepted for last 30 years and there are no qualitative difference between the nature of the works etc. Therefore, the ground that the petitioners have not been selected through Combined Civil Services Examination cannot be a ground inasmuch as the petitioners have also been selected through the APSC though the examination was different.
(ii) According to him, the petitioners are also selected through Public Service Commission as that of their counterpart i.e. APS Grade-2. There is only one difference which is that for the selection of the petitioners there was additional qualification requirement of holding NCC certificate. In support of contention, he relies on the decision of the Apex Court reported in (2008) 12 SCC 219 (State of Kerala Vs B Renjith Kumar and Others).
(iii) The learned Senior counsel submits that the respondent authority has not raised any issue or raised any dispute regarding the equivalence between the two groups so far Page No.# 13/17 relating to qualifications, duties and responsibilities, while rejecting their claims.
(iv) The learned Senior counsel submits that nowhere the reason as urged by the learned counsel for the finance department is available, either in the affidavit-in-opposition or in the impugned decision. Therefore, according to Mr. Nair such point cannot be raised at the stage of argument without that being a reason for rejection.
8. I have given anxious considerations to the submissions made by the learned counsel for the parties.
9. The order impugned is the communication dated 17.12.2013. The ground for rejection for non-granting the scale of pay on PB-4 with grade pay of Rs. 5,400/- is on the following counts.
a. The Assam Pay Commission, 2008 recommended PB-4 with grade pay of Rs. 5,400/- to those posts which are filled up through combined civil services examination conducted by APSC.
b. As the posts of class-2 officers of the Assam Home Guard is not recruited through combined civil services examination, the Government cannot agree with the proposal to pay similar grade pay with PB-4 to the petitioners.
10. The affidavit of the Finance Department shows that such decision was taken on the basis of Annexure-A to the affidavit-in-opposition. The Annexure A is a part of the recommendation of the Committee constituted to examine the report of Assam Pay Commission, 2008. At page 14 of the report of the Committee constituted to examine the Page No.# 14/17 report of Assam Pay Commission, 2008 (hereafter referred to Committee 2009) under clause 1.60 (at page 14 of the Report, 2009) expressed its agreement with general recommendation of the Assam Pay Commission, 2008 with certain modification which were given under sub-clause (1) to (8) g Clause 1.60. This part is marked as Annexure A to the affidavit-in-opposition. The clause 8 reads as follows:
"8. It is seen that some selective posts like Superintendent of Taxes, District Transport Officer, APS-Junior etc. are placed in PB4 while some posts are left out. The Committee suggests that all such left out posts which are filled up along with ACS, APS etc. through Civil Services Examination conducted by APSC and which are hitherto placed in pay scale of 4300-11025 may also be placed in PB4 with Grade Pay of Rs. 5400. Accordingly, the Committee suggests that posts of Labour Officer, Superintendant of Excise and Assistant Registrar of Cooperative Societies may also be placed in Pay Band 4 with Grade Pay of Rs. 5400."
11. The Assam Pay Commission, 2008 while dealing with the Home Department employees and fixation of their pay framed as many as 12 issues, which is available at page 147 of the Report of the Assam Pay Commission, 2008. The issue No. 8 reads as follows:
"8. Parity in pay and allowances of Civil Defence and Home Guards personnel with that of police personnel."
12. The said issue was answered at page 149 of the Report of the Commission, 2008 in the following manner:
Page No.# 15/17 "8. State Government employees of Home Guards and Civil Defence be given the pay and allowances at par with that of police personnel. The Government may also examine the question of lateral movement/ interchange between regular employees Directorate of Civil Defence and Home Guards and Assam Police personnel."
13. While examining the recommendation of the Committee, 2009 under recommendation 1.60 (8) this court finds that the said recommendation deals with the disparity between the scale of pay amongst those persons who were selected through civil services examination along with ACS, APS etc. conducted by the APSC. There is no dispute to the fact that by the common civil service examinations along with ACS and APS other posts like Labour Officers, Superintendent of Excise and Assistant Registrar, Co-operative societies are also filled up. It is discernable from the said recommendation No. 1.60 (8) of the Committee, 2009 that the Committee had dealt with the disparity in the Report of the Pay Commission, 2008 relating to scale of pay of Labour Officers, Superintendent of Excise and Assistant Registrar of Co-operative Societies who were not placed at PB-4 with grade pay of Rs. 5,400/- by the Assam Pay Commission, 2008 and accordingly the Committee 2009 recommended for removal of disparity. Therefore, the considered opinion of this court is that the Committee' 2009 while making the said recommendation No. 1.60 (8) has not dealt with the claim of the petitioners. Therefore, the conclusion of the state authority that in view of recommendation No. 1.60 (8) of the Committee, 2009, the petitioners are not entitled for higher scale of pay i.e. PB-4 with Page No.# 16/17 grade pay of Rs. 5,400/- is not sustainable.
14. Reading of the recommendation of the Assam Pay Commission 2008 and the General recommendation of the Committee 2009, it is clear that the Committee 2009 has not dealt with the recommendation of Pay Commission 2008 under issue No. 8 relating to Home Department (Page 149 of the report of the Commission). Such recommendation has neither been negated or sought to be modified by the Committee 2009. Therefore, this court is of the view the reason for rejection of the claim of the petitioners for parity is not legally sustainable.
15. As argued by Mr. Nayak, there is no dispute that the law by now is well settled that Determination of pay scale and equivalence is a primary function of the executives and expert bodies like Pay Commission and is not a function of writ court in exercise of its jurisdiction under Article 226 of the Constitution of India, until and unless it is found that serious error has occurred while doing the same and situation is as such that court needs to intervene. In the case in hand, though the Pay Commission, 2008 made recommendation under issue No. 8 at page 149 of its Report, the Government in Home Department and Finance Department has not acted upon such recommendation till date rather rejected the same on a misconceived notion.
16. Therefore, though this court is not inclined to issue the mandamus as prayed for by the petitioners to direct the respondent authorities to pay the class-2 officers of the Home Guard services the scale of pay attached to the posts figuring in the cadre of APS Junior Page No.# 17/17 Grade with effect from date of coming into force of the 6 th pay Commission, 2008, at the same time this court is of the considered opinion that the State in Home Department & Finance Department need to take note of the recommendation of the Assam Pay Commission, 2008, the Expert Body and pass a reasoned order dealing with the claim of the petitioners.
17. In view of the well settled provision of law and the observation and reasons given hereinabove, this writ petition is disposed of in the following terms:
i. The impugned order dated 17.12.2013 is set aside and quashed.
ii. The recommendation of the Assam Pay Commission, 2008 at page 149, issue 8, relating to members of Civil Defence and Home Guards be considered by the State in Home Department as well as by the Finance Department taking note of fact and circumstance of the case and decide the claim of the petitioners.
iii. Such exercise should be carried out within a period of 3 (three) months from the date of receipt of a copy of this order.
18. In the aforesaid terms, this writ petition is disposed of, however, no order as to cost.
JUDGE Comparing Assistant