Calcutta High Court (Appellete Side)
Fatik Ch. Ghosh vs Unknown on 7 March, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
7. 3.
2011
skm W.P.S.T. 609 of 2010
Mr. Kallol Basu,
Mr. Nilanjan pal ... For the petitioner.
Pratap Kumar Ray, J.
Assailing the order dated 10th March, 2010 passed by the West Bengal Administrative Tribunal in case No. OA.168 of 2003, this writ application has been filed.
The petitioner prayed for pay scale of Rs.200-400/- as per ROPA, 1961 for holding the post of Workshop Instructor which has been refused by learned Tribunal below.
From the reasoning of the order impugned it appears that under ROPA, 1961 there were five pay scales for the post of Workshop Instructor based on respective qualifications of the persons concerned, namely, i) for persons with qualification of overseer - Rs.200-400/-, (ii) for persons with qualification of sub-overseer -
Rs.175-325/-, (iii) for persons with pass certificate in the Government College and arts and its equivalent - Rs.150-250/-, (iv) for persons possessing at least a certificate of school final or its equivalent with practical experience - Rs.125-200/-
and (v) others with practical experience only - Rs.100-140/-. Admittedly, the petitioner is not qualified as overseer, but his qualification is equivalent to sub-
overseer having regard to his qualification - passed Higher Secondary Examination and thereafter holder of National Trade Certificate in the trade of Machinist 2 followed by six months course from Ist May, 1965. This 18 months course for National Trade Certificate Test followed by 6 months apprenticeship was recognised by Government order dated 29th July, 1979 as two years duration of National Trade Certificates. Following the Government order, all Workshop Instructors in Government High School holding such type of National Trade Certificates were granted the relevant pay scale of Sub-overseer - Rs. 175-325/- in terms of Government order dated 6th January, 1970. Admittedly the applicant is not qualified with Overseer diploma entitling pay scale of Rs.200-400/-. The applicant before learned Tribunal prayed for higher scale of pay relying upon the case of Fatik Ch Ghosh who was granted higher pay scale of Rs.200-400/-. Learned Tribunal has discussed distinguishing feature of that case. It appears from the order of learned Tribunal that the case of Fatik Ch. Ghosh was directed to be considered.
Thereafter a contempt application was moved and in the contempt further direction was given to decide the issue afresh and ultimately the authorities were bound to grant such pay scale in view of the Court's order and that was limited with reference to that particular person concerned and not in general to all for pay fixation of the Workshop Instructor having qualified as Sub-overseer. Full discussion/observation made about distinguishing features of Fatik Ch Ghosh case, in the order passed by learned Tribunal.
The order of learned Tribunal reads such.
"Case No: O.A. 168 of 2003 Judgement delivered on : 10.03.10 In this application, the applicant prays for setting aside/rescinding/revoking the order dated 10.10.02 (Annexure - B) 3 issued by respondent no. 2B and for fixation of his pay scale as par with that of Shri Fatik Ch. Ghosh, Shri Sambhu Ch. Pramanik and Shri Dilip Roy and to grant him Intermediate Selection Grade since 1974.
2. The case of the applicant, in a nutshell, is that he was appointed as a Workshop Instructor at Uttarpara Government High School w.e.f. 14.5.66 and obtained various technical qualifications including National Trade Certificate from the Ministry of Labour and Employment, Government of India. His scale of pay was fixed at Rs.125-200/- vide Memo dated 1.7.66 and subsequently it was fixed in the scale of Rs.175- 325/- with effect from the date of his joining. On and from 15.71 his pay scale was enhanced to Rs.300-600/- under ROPA, 1970 and further to Rs.380-910/- w.e.f 1.5.81 and to Rs.425-1050/- from 1.4.84. His pay scale was not enhanced from 10.5.85 to 9.5.86 and no Career Advancement Scheme (CAS) was given to him. He should have got the pay scale of Rs.200-400/- from 14.5.66 and Rs.425-1050/- from 1.5.81, Rs.440-1170/- from 1.4.84, Rs.1420-3130/- from 1.5.87 and Rs.1500- 3400/- from 1.4.89. His service benefit such as selection grade scale of 1974, ROPA 1981 benefit under rule 9 of ROPA 1981 and higher scale according to ROPA, 1990 as well as CAS benefit under G.O. dated 31.6.90 ( should be 30.6.90) was denied to him. This is a clear breach of the order passed by the Hon'ble Court in the matter of Fatik Ch. Ghosh Vs. State of West Bengal & Others as also the order of this Tribunal passed on 29.8.97 in O.A. 82 of 1997. Fatik Ch. Ghosh and Sambhu Ch. Pramanik, Workshop Instructors having same requisite qualification as that of the present applicant were given al service benefits and though he had much better qualification, he was denied the same in an irregular and illegal manner. Being dissatisfied and aggrieved, he filed a representation before respondent no.2B vide letter dated 19.7.96 for fixation of his pay in the same category with S/Shri Fatik Ch. Ghosh and S.C. Pramanik. He made a further representation before the same authority vide letter dated 10.8.99 and one more on 28.7.01 to respondent no.2A. His prayer was denied by the Deputy Secretary, Finance Department by order dated 5.12.01. He issued a demand justice notice on 11.1.02 and filed an application before this Tribunal being O.A. 405 of 2002 which was disposed of with a direction to respondent no.2B to dispose of the same after giving an opportunity of hearing to the applicant and by passing a reasoned order, taking into consideration the contention made in the application in the light of decision of the Tribunal in O.A 82 of 1997 within a time frame. In pursuance of the said order, respondent no.2B passed an order on 10.10.02 refusing the prayer. The order dated 10.10.02 as a whole is a gross abuse of Constitutional rights of the applicant as also violative of the principles of natural justice and though respondent no. 2B clearly expressed that the principle of equal pay for equal work was not apparently followed in this case by the Government and felt that there was qualitative difference in output by Workshop 4 Instructors of these two categories, he did not show any hint to determine how the division of this Workshop instructors arises. The applicant is holding either the higher qualification or same to that of Fatik Ch. Ghosh, S.C. Pramanik and Dilip Roy. In terms of Circular dated 6.6.70, it is clear that the applicant is holding National Trade Certificate and others are not and naturally the qualifications of Fatik Ch. Ghosh, S.C. Pramanik and Dilip Roy are equivalent to that of the qualification of the applicant. These three employees have enjoyed the pay scale of Rs.200- 400/- and the applicant has been deprived of getting the same. Dilip Roy holds a junior post ass Assistant Workshop Instructor compared to the post of applicant. The applicant in spite of holding the superior post has been deprived of getting the benefit of pay scale of Rs.200-400/-. Even if there are two categories of Workshop Instructors, when Mr. Anant Malakar holds the qualification of overseer higher than that Fatik Ch. Ghosh, S.C.Pramanik and Dilip Roy, these three persons have received the same scale of Anant Malakar ie. Rs.200-400/-. Actually there is no category in the post of Workshop Instructor and even then he has not received the same scale on a peculiar plea of absence of general order of the Government. Although this Tribunal directed respondent no. 2B to give a reasoned order in the light of the judgement passed in O.A. 82 of 1997, he wilfully neglected to take into consideration of the relevant portion and/or contention of the said order. It is surprising to note that respondent no. 2B has requested the Govt. to issue necessary order in favour of the applicant, but he decided a reverse order vide letter dated 10.10.02. He discriminated against the applicant in a peculiar way by ignoring the appropriate portions of the judgement and order passed by this Tribunal in O.A. No. 405 of 2002. The applicant being similarly circumstanced compared to Fatik Ch. Ghosh, S.C. Pramanik and Dilip Roy his right of equal pay for equal work which has been contravened seriously by the whim or Administrative fiat, cannot be denied. Hence the application.
3. In spite of repeated opportunities, the State respondents did not file any Reply.
4. The Ld. Adv. for the applicant mainly relied on various documents annexed to the application and assailed the reasoned order saying that the prayer for higher pay scale was not allowed in the absence of the general order from the Government revising upwardly the pay scale of all Workshop Instructors who are similarly qualified and circumstanced as Shri Fatik Ch Ghosh and S.C. Pramanik. The Ld. Adv. for the State respondents, on the other hand, submitted that the applicant has not established that he is similarly circumstanced with Fatik Ch. Ghosh and S.C. Pramanik. Fatik Ch. Ghosh and S.C. Pramanik were awarded higher scale in terms of the orders of the Hon'ble Court. These orders were restricted to the writ petitioners only and the scale of 5 Workshop Instructor in general was not modified. That being the case, the applicant could not derive strength from such orders of the Hon'ble Court. There being no merit in the applicant, the same deserves dismissed.
5. At the outset, it is observed that the prayer to award of Selection Grade not being consequential to the prayer relating to awarding of pay scale similar to those given to Fatik Ch. Ghosh, S.C. Pramanik and Dilip Roy is barred by Rule 10 of WBAT (Procedure) Rules, 1994 and as such being not admissible is rejected.
6. The applicant was appointed as a Workshop Instructor on 14.5.66 in the scale of pay of Rs.125-200/- vide Memo dated 1.7.66 and subsequently he was given the pay scale of Rs.175-325/- with effect from the date of his joining. ROPA, 1961 introduced five pay scales for the post of Workshop Instructors as follows : (i) for persons with qualification of overseer - Rs.200-400/-, (ii) for persons with qualification of sub-overseer - Rs.175-325/- (iii) for persons with pass certificate in the Government College and arts and its equivalent - Rs.150-250/-, (iv) for persons possessing at lest a pass certificate of school final or its equivalent with practical experience - Rs.125-200/- an (v ) others with practical experience only - Rs.100-140/-. The applicant has claimed the scale of Rs.200-400/- from the date of his joining. He passed H.S. examination in 1963 and obtained National Trade Certificate in the trade of Machinist in 1965 followed by 6 months apprenticeship was later by G.O. dated 29.7.79 considered to be of two years duration in respect of all National Trade Certificates obtained in the period prior to 1.8.66. All Workshop Instructors in Government High School holding such National Trade Certificates were accordingly granted the relevant pay scale for sub-overseers i.e. Rs.175-325/- in terms of G.O. dated 6.1.70. It is not a case that the applicant has a 3-year engineering diploma entitling him to the pay scale of overseer i.e. Rs.200-400/-. It appears that Fatik Ch. Ghosh was granted higher pay scale of Rs.200-400/- and subsequently corresponding revised pay scales in pursuance of order dated 22.11.88 of the Hon'ble Court issued in G.O. dated 14.9.95. The educational qualification of Shri Ghosh was Intermediate examination with Craft Teachers Training Certificate and a Training Certificate in Wood Craft and Metal Craft. His pay scale found to be have been wrongly fixed in the scale of Rs.200-400/- and was later reduced to Rs.125-300/-. the pay scale that he was considered to be entitled to, in December, 1967 on the plea that the earlier fixation was wrong and overdrawal was ordered to be recovered from his pay by instalments. He made a number of representations before the authority and failing to get any response, moved the Hon'ble Court in 1968 challenging the order of reduction. The said rule was heard and discharged by the Hon'ble Court on 13.7.72. He preferred an appeal being FMAT No. 567 of 1973 which 6 was allowed by the Hon'ble Court on 20.2.87 directing the respondents to consider the case in accordance with the law after giving an opportunity of hearing. Nothing further was done till December 1987. Then a further writ application was moved on 24.12.87 when directions were given for filing of affidavits. No affidavits having been filed, on 2.5.88 the Hon'ble Court passed an order directing the Director of Public Instruction and the Head Master, Howrah Zilla School to explain why the orders dated 20.2.87 had not been complied with. On the next date i.e. 9.5.88 the Hon'ble Court directed these two persons to appear in the Court on 13.5.88 and to explain why they did not attend the Court on 9.5.88 as directed. On 8.6.88 another order was passed directing the Director of School Education to be personally present on 29.7.88. On 29.7.88, the then Director of School Education having submitted that he had not been made a party, the Hon'ble Court directed the Director to be made a party and further directed him to consider the case sympathetically as per the judgement of the appeal court dated 20.2.87 within a specific period. That order was also not complied with. The petitioner n this case joined service in 1960 on a pay scale of Rs.110- 150/- which was revised in 1961 to Rs.200-400/- on the basis of qualification under ROPA, 1961 and duly approved by the Accountant General, Government of West Bengal in 1962. The benefit of the scale was, however, withdrawn without giving him opportunity of hearing. Here his ay scale was reduced to Rs.125-200/- from 1967 and he was not given any revision, or selection grade not even the benefit of ROPA, 1981. He reached the maximum of the scale in November 1967 at Rs.200/-. In view of this and the repeated failure of the State Government to consider the direction of the Hon'ble Court from time to time and also in view of the fact that one Dilip Roy, Workshop Instructor, not having appropriate qualification was given the scale of Rs.200-400/- and his pay scale was not reduced, the order of reduction of the pay scale of the writ petitioner viz. Fatik Ch. Ghosh was quashed. It was directed that his pay should be fixed in the scale of Rs.200-400/- along with all consequential benefits and pay fixation. It is thus seen that this order was restricted to the petitioner viz. Fatik Ch. Ghosh only and was not a general order enhancing the pay scale of Workshop Instructor to Rs.200-400/-.
7. In O.A. 82 of 1997 this Tribunal followed this judgement and awarded similar benefits to S.C.Pramanik.
8. In terms of Memo dated 6.6.70, t was held that for the subordinate technical post in engineering and other departments under the State Government, the holders of National Trade Certificate from IITs or its equivalent certificates awarded after successful completion of a total period of 2 years after School Final Examination should be considered as equivalent to Sub-overseer's certificate for the purpose of fixation of pay in the scale of Rs.175-325/- as per ROPA, 1961. In terms of Memo dated 7 23.11.72, the initial pay sale of the applicant i.e. 150-250/- was revise to Rs.230-425/- w.e.f. 1.4.70 an vide Memo dated 27.9.83, in partial modification of G.O. dated 23.9.72, his pay scale was further modified to Rs.175-325/- with effect from the date of his joining i.e. 14.5.66 and then in the corresponding scale of Rs.300-600/- w.e.f. 1.4.70 under ROPA, 1970.
9. The pay scale fixed in ROPA 1970 for Workshop Instructor have not been called into question before the court of law in the cases cited by the applicant. Therefore, the prayer of any applicant will have to be seen in the context of these pay scales and the subsequent revised pay scales. It has never been claimed that Fatik Ch. Ghosh had the appropriate qualification necessary for award of the pay of Rs.200-400/- but as has been discussed elaborately above, he was erroneously granted the same pay scale which was revised downward later, without any opportunity of hearing being given to him for this purpose. It has been made clear that for violation of the principle of natural justice as also for repeated failure of the State respondents to consider the matter and to carry out the direction of the Hon'ble Court, Shri Ghosh was awarded the scale of Rs.200-400/-. Again, as mentioned above, this award was in respect of the petitioner Fatik Ch. Ghosh only and cannot be treated to be a general order fixing the pay scale of all Workshop Instructors in terms of ROPA, 1961 at Rs.200-499/-. This Tribunal in O.A. 82 of 1997 awarded the same pay scale to S.C Pramanik. S.C. Pramanik was a matriculate i.e. he did not even have academic qualification of Fatik Ch. Ghosh. The matter of technical qualification has not been dealt with. Assuming that he had practical experience his scale would have been fixed at Rs.125-200/- in terms of ROPA, 1960.
10. In Government High Schools, pay scales of teachers are qualification based. A trained Masters' degree holder gets higher scale of pay than a trained Hons' degree holders and a trained Hons' degree holder gets higher scale compared to a trained pass graduate. Similarly, in terms of ROPA, 1960 a trained undergraduate teacher used to have even lower scale and other undergraduate teachers further lower scale. There are many such examples across many departments where pay scales were fixed on the basis of qualification. This is an accepted position in Government High/H.S. School and in many other departments. This principle is not under challenge and has continued for the last 50 years. Therefore, there is no case to disturb this long standing position especially in the name of equal pay for equal work.
11. In sum, no wrong was committed in awarding the pay scale of Rs.175-325/- to the applicant in terms of ROPA, 1961 and the subsequent corresponding scales. The applicant was not entitled to Rs.200-400/- as claimed, in terms of ROPA, 1961 or subsequent scales 8 on that basis as claimed and in view of the facts and circumstances, the same cannot be granted to him on the analogy of the two cases cited.
12. In view of the above discussion, there being no merit in the application, the same is dismissed but without any order as to cost.
Plain copy.
Sd/- K.K.Bagchi Sd/- A.K.Bhattachharya
Member(A) Member(J)."
The petitioner has prayed for identical treatment at par with said Fatik Ch. Ghosh. Pay scale granted to Fatik Ch. Ghose was due to direction of High Court in a contempt proceeding. It is settled legal proposition of law that identical treatment for identical cases to be looked into in the angle of Article 14 of the Constitution of India by giving a positive concept of said constitutional provision.
When someone prays for relief on ground of discrimination under Article 14 of the Constitution of India, he has to satisfy the Court about his legal right and if there is legal right to claim discrimination issue, could be considered thereafter.
Discrimination issue simplicitor cannot be a ground to grant any relief unless the person concerned has legal right to claim it.
Reliance is placed to the judgement passed in the case Union of India -Vs.-
Kartick Ch. Mandal reported in (2010) 2 SCC 422 where earlier view of Apex Court passed in the case State of Bihar -Vs.- Upendra Narayan reported in (2009) 5 SCC 65 was relied.
Having regard to such legal position, since the petitioner failed to satisfy legal right claim pay scale of "Overseer", being qualified with engineering diploma, petitioner is not entitled to fixation of said pay scale. The petitioner 9 cannot claim identical pay scale with Mr. Fatik Ch. Ghose as alleged. As such, we are not finding any illegality for judicial review of the order passed by the learned Tribunal below.
The writ application accordingly has no merit. It stands dismissed.
There will be no order as to costs.
(Pratap Kumar Ray, J.) I agree.
(Dr. Mrinal Kanti Chaudhuri, J.) (Pratap Kumar Ray, J.) 10 (Dr. Mrinal Kanti Chaudhnuri, J.)