Tripura High Court
No. M/371242L vs Union Of India on 15 January, 2018
Author: S. Talapatra
Bench: S. Talapatra
IN THE HIGH COURT OF TRIPURA
AGARTALA
W.P.(C) No.592 of 2017
No. M/371242L,
Hav/Dental Hygienist, Sri Jagroop Singh,
No.15 Dental Unit, Assam Rifles,
C/O- No.2 Manit Group, Assam
Rifles, Jail Road, Silchar, District-
Cachar, Assam, PIN-788003
......Petitioner
Versus
1. Union of India,
represented by its Secretary,
Ministry of Home Affairs,
Government of India, having his
office at North Block, New Delhi
2. The Director General,
Assam Rifles, having his office at
Mahanirdeshalaya, Assam Rifles
Directorate General, Assam
Rifles, Shillong, Meghalaya
3. The Inspector General,
Assam Rifles (East), C/O 99 APO,
having his office at Moushimpur
(Silchar), Assam
4. The Deputy Inspector General,
C/O 99 APO, having his office at
Agartala, Tripura
5. No. M/370401L,
Rank-Havildar/Dental Hygienist,
Shri B. Roy
6. No. M/370688N,
Rank-Havildar/Dental Hygienist,
Shri Balwinder Singh
7. No. M/370649P,
Rank-Havildar/Dental Hygienist,
Shri Prakash Chand Dhatwalia
8. No. M/370996N,
Rank-Havildar/Dental Hygienist,
Shri Vijay Kumar Sharma
9. No. M/37129L,
Rank-Havildar/Dental Hygienist,
Shri Umesh Kumar Sharma
[2]
10. No. M/371084F,
Rank-Havildar/Dental Hygienist,
Shri Satish Kumar
11. No. M/371176N,
Rank-Havildar/Dental Hygienist,
Shri Rakesh
12. No. M/371170,
Rank-Havildar/Dental Hygienist,
Shri Sailesh Kumar Singh
13. No. M/37116A,
Rank-Havildar/Dental Hygienist,
Shri Hanumant Singh
14. No. M/371244W,
Rank-Havildar/Dental Hygienist,
Shri Ashutosh
15. No. M/371292W,
Rank-Havildar/Dental Hygienist,
Shri Narayan Singh
16. No. M/371465H,
Rank-Havildar/Dental Hygienist,
Md. Sahid Ansari
17. No. M/371293,
Rank-Havildar/Dental Hygienist,
Shri Major Singh
18. No. M/371346M,
Rank-Havildar/Dental Hygienist,
Md. Arfhed Sheikh
[The respondents Nos. 5 to 18
are serving in different parts of
the countries and hence, notices
upon them may be served
through he respondent No.2, the
Director General, Assam Rifles]
........ Respondents
BEFORE
THE HON‟BLE MR. JUSTICE S. TALAPATRA
For the petitioner : Mr. Somik Deb, Advocate
For the respondents : Mr. B. Majumder, CGC
Date of hearing and delivery : 15.01.2018
of Judgment & Order
Yes No
Whether fit for reporting : √
W.P.(C) No.592 of 2017 Page 2 of 19
[3]
JUDGMENT & ORDER (ORAL)
Heard Mr. Somik Deb, learned counsel appearing for the petitioner as well as Mr. B. Majumder, learned CGC appearing for the official respondents.
[2] The petitioner, a Dental Hygienist, by means of this writ petition has urged this court for directing the respondents to grant him all benefits of pay, rank etc. as admissible to the post of Warrant Officer w.e.f. 10.10.1997, the day on which such benefit was extended to the Havildar [Radio Mechanic] along with other consequential benefits. Initially the petitioner and the respondents No.5 to 18, hereinafter referred to as the private respondents, were appointed in the substantive post of Nursing Assistant in Assam Rifles on diverse dates. Having appointed as the Nursing Assistant, the petitioner and the private respondents were given basic nursing training, called Nursing Assistant Basic Class-IV, and thereafter, they had undergone the up-gradation [Class-III and Class-II] training in various military hospitals. In this regard there is no dispute. The petitioner and the private respondents had passed the Dental Hygienist Class-III [diploma course] from the Command Military Hospital Centres, situated at Lucknow, New Delhi, Pune and Kolkata etc. which are recognised institutes for imparting such training by the Dental Council of India. The petitioner as well as the private respondents had undergone up-gradation [Class-II and Class-I] training in various Command Military Hospital Centres and Armed Force Medical Colleges. Thus, the petitioner had acquired efficiency and skill. On diverse dates, the petitioner and the private respondents have been promoted to the post Havildar-Dental W.P.(C) No.592 of 2017 Page 3 of 19 [4] Hygienist. Assam Rifles is the oldest paramilitary force of the country having been established in the year 1835. The members of the Assam Rifles are under the direct control of the Ministry of Home Affairs, Government of India and they are entitled to be treated equal to the other military force of India. The recruitment rules for the Assam Rifles [Group-C combatized] are covered by the Recruitment Rules, 2000. In the course of time, the recruitment rules have been amended or altered. Until the 4th Central Pay Commission recommendation, the CPC in short, was adopted and revised scales were given to the employees of Assam Rifles, the petitioner and the similarly circumstanced persons were getting their pay and allowances at par with the army analogy but subsequently with the introduction of 4th CPC, the pay scales of the employees of the Assam Rifles were rationalised at par with Central Police Organisations [CPO in short]. The respondent No.1 as stated by the petitioner had accepted that the members of the Assam Rifles would be granted rank structure at par with other Central Police Organisations which would apparent from the order under No.27012-97 PC Cell/PF-1 dated 10.10.1997. The operative portion of the said order dated 10.10.19978 is profitably extracted hereunder:
"In pursuance of Para 7 of Ministry of Finance Department of Expenditure, Resolution No.50(1)/IC/97 dated 30 September, 1997, the President is pleased to rationalize the rank structure and pay scales of non-gazetted cadre of Central Police Organizations. As a result of this exercise the rank of Lance Naiks and Naiks in the Central Police Organisations will be merged with the rank of constables and head Constables respectively. Accordingly, the rank structure in the Central Police Organisations will be as below:
1. Constable/Security Assistant.
2. Head Constable.
3. Asstt. Sub-Inspector
4. Sub-Inspector/ACIO-II
5. Inspector/ACIO-I
6. Subedar Major W.P.(C) No.592 of 2017 Page 4 of 19 [5]
2. the President is also pleased to rationalise the pre-revised pay scales and replacement pay scales in respect of the above cadres as indicated below:
Sl. Rank Structure Rationalized Replacement pay No. pre-revised scales Pay Scales 1 Constable/Security Rs.950-1400 Rs.3050-70-4590 Assistant.
2 Head Constables Rs.975-1660 Rs.1200-85-4900 3 Asst. Sub-Inspector Rs.1320-2040 Rs.4000-100-6000
3. 4 Sub-Inspector/ACIO-II Rs.1640-2900 Rs.5500-175-9000 T 5 Inspector/ACIO-I Rs.2000-3200 Rs.6500-200-10500 h 6 Subedar Major Rs.2000-3500 Rs.6500-200-10500 e existing Lance Naiks and Head Constables in these Organisations will be allowed a Special Pay/Appointment pay of Rs.30/- and Rs.50 per month respectively. These personnel will continue to draw this Special Pay/Appointment pay till they are promoted to the next higher grade or till they vacate the post on attrition.
4. It has also been decided to allow an appointment pay of Rs.200/- per month to the Subedar Majors in the Central Police Organisations.
5. The above orders will be effective from the date of issue. For the period from 01.01.1996 till the issue of this order, the pay in the revised scale will be regulated in accordance with the provisions of the Central Civil Services (Revised) Pay Rules, 1997.
6. This issues with the concern of Department of Expenditure vide their H.Q. No.2130/Director(P)-97 dated 9th October, 1997. Finance Division of MHA vide their Dy.
No.1670/Fin.III/97 dated 10.10.1997."
[Emphasis added] [3] The petitioner has further averred in Para-2.14 of the writ petition that in the communications under No.A/C/PRS/WO/98 dated 26.01.1998 and 27.02.1998, it has been provided that the Warrant Officer which post is equivalent to the post of Assistant Sub-Inspector in other Central Police Organisations would get the benefits of Mess, Club and accommodation etc. at par with Junior Commissioned Officer. But that decision of the Government of India was not given effect to the Assam Rifles at par with other Central Police Organisations. In the communication under No.27012-07 PC Cell/PF-I/56 dated 22.01.1998, made by the Ministry of Home Affairs, Government of India, the mode of rationalisation of the rank structure was conveyed. In the said communication, a reference was made to the communication under No.27012-07 PC Cell/PF-I dated W.P.(C) No.592 of 2017 Page 5 of 19 [6] 10.10.1997, where it was clarified that the orders are equally applicable to all combatised categories. Thus, the petitioner has asserted that the official respondents are duty bound to implement the parity and status in respect of the pay scale of all Central Police Organisations as recommended by the 5th CPC and accepted by the official respondents. The respondent No.1 had an intention to implement the recommendation of the 5th CPC as is apparent from the communication under No.II-27011/2/2001-PF.II dated 08.01.2001, issued by the Ministry of Home Affairs, Government of India in respect of rationalisation of the pay scales of the paramilitary forces. The concerned authorities were requested to confirm as to whether the said pay scale was adopted for technical categories in the combatised section [other than the G.D]. The competent authority was also asked to make a comparative statement of the pay scales with technical categories, prior to the introduction of 5th CPC recommendation. Further, the petitioner has submitted that on implementation of 4th CPC recommendation, a noticeable disparity has surfaced in the pay scales of the Head Constable/Radio Mechanics etc. as the pay scale of the Head Constable/Radio Mechanics of the Border Security Force, the BSF in short, was raised to `1200-2040/- but the said pay scale was not implemented in Assam Rifles for the equivalent post of Havildar [Radio Mechanic]. As a result, Havildar [Radio Mechanic] in Assam Rifles continued to draw their pay scale in the scale of pay of `975- 1660/-. According to the petitioner, that was the context in which a policy of the rationalisation of the pay scale of all the Central Paramilitary Organisations was adopted. But the said benefit was not W.P.(C) No.592 of 2017 Page 6 of 19 [7] extended to the identical rank of Assam Rifles. One Dineshan KK being aggrieved by such arbitrary action, approached the Gauhati High Court by filing a writ petition being W.P.(C) No.497 of 2001. By the judgment and order dated 11.02.1995, the said writ petition was allowed directing the Union of India-respondents to re-designate the post of Havildar [Radio Mechanic] as Warrant Officer in terms of the communication under No.27011/103/97-PF.I dated 03.03.1998 and to grant the same pay scale to the Havildar [Radio Mechanic] as Warrant Officer as admissible to their counterparts in the Border Security Force and the Central Reserve Police Force from the same day when the similar rank received the same benefit. It was declared in the said judgment that the members of the Assam Rifles would get the same rank structure at par with the other Central Police Organisations. The said judgment was affirmed by the Division Bench of the Gauhati High Court as well as by the apex court by their judgment and order dated 04.01.2008 delivered in Civil Appeal No.25 of 2008. The apex court in Union of India vs. Dineshan K.K., reported in (2008) 1 SCC 586 after discussing all the relevant fact and precedents has observed as under:
"20. Thus, the short question requiring our consideration is whether having admitted in their affidavit referred to hereinabove, the „apparent disparity‟ and „anomaly‟ in the pay scales of Radio Mechanics, the administrative authorities, the petitioners herein, could be permitted to perpetuate apparent discriminatory differentiation in the pay scales because of the disparity in pre-revised and revised scales of the personnel of Assam Rifles prior to the recommendations of the Fourth Pay Commission, irrespective of the identity of their powers, duties and responsibilities with other paramilitary forces. In our considered opinion, in view of the total absence of any plea on the part of the Union of India that Radio Mechanics in other paramilitary forces were performing different or more onerous duties as compared to the Radio Mechanics in Assam Rifles, the impugned decision of the Government was clearly irrational and arbitrary and thus, violative of Article 14 of the Constitution."
[Emphasis added] W.P.(C) No.592 of 2017 Page 7 of 19 [8] [4] The petitioner has further asserted that the post of Nursing Assistant, in which post the petitioner had entered in the service under the official respondents, is similar to the post of Rifleman [Operator Radio Line]. After undergoing Class-III and Class-IV courses in the nursing, the Nursing Assistants are promoted to the post of Havildar [Dental Hygienist] and the Rifleman [Operator Radio Line] are promoted to the post of Havildar [Radio Mechanic]. In Para-2.33 of the writ petition the petitioner has averred as under:
"2.33. It may be further placed on record that prior to the up-gradation of the post of Havildar [Radio Mechanic] to the post of Warrant officer, the pay scale, admissible to the post of Havildar [Radio Mechanic] was same to that of the post of Havildar [Dental Hygienist]. It is only pursuant to the up-gradation of the post of Havildar [Radio Mechanic] to the post of Warrant Officer, the holders of such posts are drawing higher salary than that of Havildar [Dental Hygienists]."
[Emphasis added] As such, the petitioner has claimed the similar benefit of the Warrant Officer treating the post of Havildar [Dental Hygienist] as an equivalent post of Warrant Officer. In this regard, the petitioner filed a representation but without any positive yield. The petitioner has referred to the Assam Rifles [Group-C combatised posts] Recruitment Rules, Annexure-6 to the writ petition, to show the parity in duties and responsibilities. It has been also categorically asserted that the post of Rifleman [Nursing Assistant] and Rifleman [Operator Radio Line] are at par and on completion of training courses at various levels, they are promoted to their respective superior grades viz. Havildar [Dental Hygienist] or Havildar [Radio Mechanic].
[5] The petitioner has placed his foundational reliance on the communication dated 28.07.1998 having further reference to W.P.(C) No.592 of 2017 Page 8 of 19 [9] the letter No.A/Pers/5th-CPC/Vol-III/98/123 dated 07.07.1998 whereby an amendment has been carried out in the catalogue of the ranks for granting Warrant Officer rank to technical trade in equivalence with the BSF. The relevant part of the said communication dated 28.07.1998 as issued by the Director General, Assam Rifles is extracted hereunder:
"2. Sub Sub Para (1) to para 14(a) of English and Hindi version of „Baat Chit‟ forwarded vide our letter under reference may be amended as under:
Granting of Warrant Officer Rank to technical trade in equivalence with BSF to include the following trades:
(a) Havildar Radio Mechanics (ab) Havildar Ciphers (ac) Havildar Operator Radio and Line (ad) Havildar Store Keeper Technical (ae) Havildar Electrical Fitter Signal (af) Havildar Lineman Field (ag) Havildar Pharmacist and Compounders (ah) Havildar Lab Asstt. (aj) Havildar Nursing Asstt. (ak) Havildar Operator Room Asstt. (al) Havildar Despatch Rider (am) Havildar Dental Tech (an) Havildar Dental Hygienist (ao) Havildar Veh Mech (ap) Havildar Electrician (aq) Havildar Armr.
(ar) Havildar Draughtsman"
[Emphasis added] [6] According to the petitioner, the benefits of Warrant Officer in terms of the above letter dated 28.07.1998 shall flow to the post of Havildar [Dental Hygienist], but that has not been done even though the petitioner has been holding the post of Havildar [Dental Hygienist]. The petitioner has asserted that as, such benefit has been extended to the post of Havildar [Radio Mechanic] that shall also be made available to the persons holding the post of Havildar [Dental Hygienist]. Hence, the petitioner has urged this court for directing the respondents to extend such benefits to the rank of the Havildar [Dental Hygienist] w.e.f. 10.10.1997, the day W.P.(C) No.592 of 2017 Page 9 of 19 [10] when such benefit was extended to the rank of Havildar [Radio Mechanic].
[7] Mr. Somik Deb, learned counsel appearing for the petitioner has submitted that on a comparative study of the recruitment rules along with the letter dated 28.07.1998, it would be apparent that the official respondents have recognised the parity between the post of Havildar [Radio Mechanic] and Havildar [Dental Hygienist]. Mr. Deb, learned counsel has, therefore, contended that equal pay for the equal work has acquired the status of fundamental right qua Article 39 of the Constitution of India. In this regard, he has referred a decision of the apex court in Purshottam Lal and others vs. Union of India and another, reported in (1973) 1 SCC 651, where the apex court has enunciated the imperatives of the executive as under:
"Either the Government has made reference in respect of all Government employees or it has not. But if it has made a reference in respect of all Government employees and it accepts the recommendation it is bound to implement the recommendations in respect of all Government employees. If it does not implement the report regarding some employees only it commits a breach of Articles 14 and 16 of the Constitution. This is what the Government has done as far as these petitioners are concerned."
[8] From the other side, Mr. B. Majumder, learned counsel appearing for the official respondents has submitted that the analogy on the basis of which the relief is structured is not sustainable inasmuch as the petitioner and the private respondents belonged to a different category of posts i.e. Havildar/Dental Hygienist, whereas the Havildar/Radio Mechanic constitutes a different category of posts and those two posts cannot be equated because of marked difference in the duties and trade. The duties, nature of work and responsibilities attached to the post of W.P.(C) No.592 of 2017 Page 10 of 19 [11] Havildar/Dental Hygienist are entirely different. But Mr. Majumder, learned CGC has fairly submitted that the office memorandum No.27011/103/97-PF-1/56 dated 22.01.1998 was issued in continuation of the office memorandum dated 10.10.1997 and the resolution dated 30.09.1997 clearly indicates that 'in case of Head Constable (Radio Mechanic) HC (RM) Grade-I and Grade-II and Head Constable (Draughtsman) since the pay commission has given the replacement pay scale of Rs.4,000/- -Rs.6,000/- in respect of these three categories of posts in CPMFs, these 3(three) categories may be re-designated as ASI in the pay scale of Rs.4,000/- - Rs.6,000/-. As regards, other categories of head constable (HC), in any CPMFs, such as HC (RO, Cry) etc. These posts will continue to be known as HC in the relevant scale of pay approved by the Government." The said office memorandum, according to Mr. Majumder, learned CGC, has clearly spelt out that only those ranks are to be given the rank of Warrant Officer/ASI. The balance of the Head Constable/Havildar is to retain their present rank and hence, the petitioner's claim to have the benefit of the Warrant Officer is preposterous. Mr. Majumder, learned CGC has pointed out that the rank of Havildar [Dental Hygienist] has been extended with the pay scales as per the recommendation of 5th CPC and 6th CPC. It is apparent even from Para-9 of the reply filed by the official respondents that the rank of Warrant Officer is placed in the Higher Pay Scale of `4000-6000/- [as per 5th CPC], whereas the post of Havildar is placed in the pay scale of `3200-4900/- [as per 5th CPC]. It is seen that the official respondents have clearly admitted that the rank structure of the Assam Rifles had been rationalised in W.P.(C) No.592 of 2017 Page 11 of 19 [12] accordance with the Ministry of Home Affairs' office memorandum dated 10.10.1997 w.e.f. 10.10.1997. But the official respondents have distinguished their averments by stating that the parity cannot be brought in respect of the post of Havildar [Dental Hygienist]. Having reference to the letters issued by the Ministry of Home Affairs, the official respondents have stated that the petitioner does not have any foundation to support his relief as those letters do not hold any relevance for the category of Dental Hygienist. According to them, after such relief is granted, there would be enormous financial implication and dearth of accommodation facilities as entitled to the rank of Warrant Officers. Mr. Majumder, learned CGC has emphatically submitted that the 6th CPC recommendation has done away with the difference between pay scales by introduction of the equal pay band and grade pay of the Warrant Officer for the Group-C [non-gazetted] posts and hence, no discrimination as alleged exists any more. Having referred to the office memorandum dated 10.10.1997 and the resolution dated 30.09.1997, the official respondents have stated that only the rank of Head Constables [Radio Mechanic] and Head Constables [Draughtsman] are to be given the rank of Warrant Officer/ASI. The balance of the Head Constables/Havildar is retained to their present rank. That apart, Mr. Majumder, learned CGC has submitted that the petitioner and the private respondents were enrolled in the force as Rifleman/Nursing Assistant and later on, re-mustered to Havildar[Dental Hygienist] on signing of an undertaking that they are willing to such re-musteration, irrespective of their financial implications and hence, now they are estopped to the plank of W.P.(C) No.592 of 2017 Page 12 of 19 [13] discrimination. There is no dispute that by virtue of the memorandum dated 22.01.1998, Annexure-R/1 to the reply filed by the official respondents, the post of Head Constable [Radio Mechanic] Grade-I or Grade-II or Head Constable [Draughtsman] were re-designated as ASI in the scale of pay of `4000-6000/- w.e.f. 10.10.1997 alike others CPMFs. The Ministry of Home Affairs by the letter No.27011/103/97.PF.I dated 03.03.1998 clarified that the Assam Rifles could re-designate Havildar [Radio Mechanic] as Warrant Officer, if they are drawing the pre-revised pay scale of `1200-2040/- as the Havildar [Radio Mechanic] of Assam Rifles was not in the pre-revised pay scale of `975-1660/-. They were re- designated as the Warrant Officer in the pay scale of `4000-6000/-. The denial resulted in institution of a writ petition by one Dineshan K.K.(supra). It reached to the apex court. After the direction from the apex court, they were given the rank of the Warrant Officer with all benefits related to such post. But according to Mr. Majumder, learned CGC, the petitioner cannot get similar benefit and he is endeavoured to interpret the government order and the memoranda to state that the official respondents would not allow the petitioner to achieve such benefit. The respondents in the reply have bluntly stated as follows:
"The prayer of the petitioner to bring partially in respect of pay, rank and status of Assam Rifles at par with other Central Police Organisation by introducing the rank of Warrant Officer/ASI at the entry level inconsonance with Head Quarters, Director General, Assam Rifles letter dated 28.07.1998, Ministry of Home Affairs letter dated 10.10.1997 do not stand any ground, since, all three letters mentioned hereinabove are not applicable for the category of Dental Hygienist."
[9] Further, the official respondents have stated that the Ministry of Home Affairs vide letter No.II.27011/2/2001-PF.II dated W.P.(C) No.592 of 2017 Page 13 of 19 [14] 08.01.2001 had intimated that the rationalisation of rank structure and pay scales from constable to Subedar Major had been ordered by the Government on the line of the Delhi Police vide the OM dated 10.10.2000 and requested to indicate whether the same pay scales had been adopted for technical cadres in the combatised stream other than GD cadre or not. Accordingly, the reply was submitted to the Ministry stating that rationalized rank structure and pay scale as ordered vide Ministry of Home Affairs' letter dated 10.10.1997 had been adopted by Assam Rifles for all categories of personnel including technical cadre vide the Directorate letter No.A/Pers/5/CPC/2001 dated 09.01.2001 along with a comparative statement showing the pay scale of technical cadre and GD cadre. Mr. Majumder, learned CGC has stated that the extract of Magazine should not be treated as a documentary evidence. That apart, duties and responsibilities of the petitioner and the other private respondents cannot be equated with Havildar [Radio Mechanic] and hence, there is no element of discrimination as alleged or at all. [10] Mr. Majumder, learned CGC has referred a few decisions of the apex court to bolster his submission further. In Council of Scientific and Industrial Research vs. K.G.S. Bhatt and another, reported in (1989) 4 SCC 635, the apex court has observed as under:
"......It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. (See : Principles of Personnel Management by Flipo Edwin B. 4th Ed. p. 246). Every management must provide realistic opportunities for promising employees to move upward. „The organisation that fails to develop a satisfactory procedure for promotion W.P.(C) No.592 of 2017 Page 14 of 19 [15] is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors‟. (See : Personnel Management, Dr. Udai Pareek p. 277). There cannot be any modern management much less any career planning, man- power development, management development etc. which is not related to a system of promotions.(See Management of Personnel in Indian Enterprises, Prof. N.N. Chatterjee, Chap.12, P.128)"
[11] Further, reliance has been made on Dr. Ms. O.Z. Hussain vs. Union Of India And Ors., reported in (1990) Supp. SCC 688, where the apex court has observed that:
"Promotion is thus a normal incidence of service. There is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non- medical 'A' group scientists in the establishment of Directorate General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to provide promotional avenue for this category of officers."
This decision however does not support in any manner the case of the official respondents.
[12] In Hukam Chand Gupta vs. Director General, I.C.A.R. & Ors., reported in (2012) 12 SCC 666, the apex court has held that the provisions contained in ACPs/MACPs are in consonance with the observations made by it, in the case of Indian Council of Agriculture (supra). While holding so, the apex court also referred to its earlier decision in State of Tripura vs. K.K. Roy, reported in (2004) 9 SCC 65, wherein non-application of ACPs by the State Government was not appreciated, because the post was left stagnated with any avenue of promotion. In that case, the apex court had even directed the State Government to grant the incumbent one higher scale of pay on completion of 12 years and another upon completion of 24 years. Those decisions as referred by W.P.(C) No.592 of 2017 Page 15 of 19 [16] the respondents virtually do not have any relevance in the perspective fact of the controversy, as raised in the writ petition. [13] Having scrutinized the records so produced by the respective parties and appreciated the submission made by the learned counsel, the following questions have emerged for decision:
(i) Whether the petitioner is entitled to the benefits of Warrant Officer as the benefit of the said post has been extended to the post of Havildar [Radio Mechanic] in Assam Rifles.
(ii) Whether the communication under
th
No.A/Pers/5 -CPC/Vol-III/98 dated 28.07.1998, Annexure-3 to the writ petition, the equivalence as declared thereof, would entitle the petitioner to get the said benefit or not.
[14] At the outset it is to be placed on record that a decision of the High Court of Meghalaya in Union of India vs. K. Jayachandran Havildar Draftsman and others., [judgment and order dated 26.11.2014 delivered in W.A. 25 of 2013 and W.A. No.29 of 2012] as referred by Mr. Somik Deb, learned counsel appearing for the petitioner which does not hold any relevance in the present context. In Dineshan K.K. (supra) the apex court has observed that the differentiation in the pay scales of two paramilitary forces is held not based on any substantive dissimilarity of academic qualification or the nature of duties and responsibilities, but only on the ground that there was initial 'anomaly' in the Fourth Central Pay Commission recommendation. It has been further observed in Dineshan K.K. (supra) that equation of posts and equation of pay structure being complex matters are generally left to the Executive and expert bodies like the Pay Commission etc. It has been emphasized that a carefully evolved pay structure ought not to be ordinarily disturbed by the Court as it W.P.(C) No.592 of 2017 Page 16 of 19 [17] may upset the balance and cause avoidable ripples in other cadres as well. In this regard, the reference has been made to the apex court's decision in Secretary, Finance Department & Ors. vs. West Bengal Registration Service Association & Ors. : (1993) Supp.(1) SCC 153 and State of Haryana & Anr. vs. Haryana Civil Secretariat Personal Staff Association : (2002) 6 SCC
72. The apex court has also observed that it will not be correct to lay down as an absolute rule that merely because determination and granting of pay scales is the prerogative of the Executive, the Court has no jurisdiction to examine any pay structure and an aggrieved employee has no remedy if he is unjustly treated by arbitrary state action or inaction, except to go on knocking at the doors of the Executive or the Legislature, as is sought to be canvassed on behalf of the appellants. Undoubtedly, when there is no dispute with regard to the qualifications, duties and responsibilities of the persons holding identical posts or ranks but they are treated differently merely because they belong to different departments or the basis for the classification of posts is ex-facie irrational, arbitrary or unjust, it is open to the Court to intervene. [15] To have the answer to these questions as formulated by this court, this court is inclined to place on the records that there was equivalence in the pay scale and other benefits between the post of Havildar [Radio Mechanic] and the Havildar[Dental Hygienist] all through as is evident from the recruitment rules. This parity having been acknowledged historically can only be disturbed on the basis of a very strong logic but such logic has not been advanced by the official respondents in their reply. Secondly, the W.P.(C) No.592 of 2017 Page 17 of 19 [18] specific averment, made by the petitioner in Para-3.1 of the writ petition, has not been met by the official respondents in their reply. In Para-3.1 of the writ petition, the petitioner has stated that it would be crystal clear that in spite of unambiguous decision, the petitioner and similarly situated persons have been deprived of their legitimate benefits. Furthermore, it would surface from a bare reading of the order dated 28.07.1998 that there was a clear direction for granting the benefit of Warrant Officer to the post of Havildar [Dental Hygienist] and thus, the petitioner is entitled to the benefits of pay, rank and other service benefits as admissible to the post of Warrant Officer w.e.f 10.10.1997 and as has been extended to the post of Havildar [Radio Mechanic] along with all consequential benefits. In reply to the said averment as is evident from Para-13 of the reply filed by the official respondents, the respondents have merely evaded any specific reply but they have advanced a plea that the communication dated 28.07.1998 cannot be relied because these are the mere extracts from the magazine, called 'Baat Chit'. This court is constrained to observe that the communication dated 28.07.1998 is not an extract from any magazine but it is a comprehensive order in respect of granting benefits of the Warrant Officer rank to the technical trade at par with the BSF. The said decision was never altered, at least no such record has been produced before this court. Thus, this court is not required to take up the task of making equivalence for purpose of parity. The official respondents have admitted the equivalence for purpose of granting the rank of Warrant Officer. Thus, this court is of the view that the petitioner is entitled to get the rank of Warrant Officer. Thus, this W.P.(C) No.592 of 2017 Page 18 of 19 [19] court is of the view that the petitioner is entitled to get all benefits, available to the rank of Warrant Officer including the pay and allowances, other miscellaneous allowances and benefits. The denial, therefore, is not only arbitrary but grossly unreasonable and striking at the root of the equality clause, Article 14 of the Constitution of India. Hence, the respondents are directed to grant such benefit to the petitioner, as delineated above, within a period of 3[three] months from the date when the petitioner shall produce a copy of this order to the official respondents.
[16] In the result, this writ petition stands allowed to the extent as indicated above.
However, there shall be no order as to costs.
JUDGE Sujay W.P.(C) No.592 of 2017 Page 19 of 19