All Tripura Diploma Engineers'' Association and Others vs State of Tripura and Others

M.L. Singhal, J.—Since both the two writ petitions involve identical questions of facts and law, both the petitions are being disposed of by this common judgment.

2.1 have heard Mr. A JC. Bhowmik, learned sr. counsel along with Mr. S. Ghosh, learned Counsel and Mr. K.N. Bhattacharjee, learned sr. counsel along with Mr. S.B. Dutta, learned Counsel for the Petitioners. Also heard Mr. B.R. Bhattacharjee, learned Advocate General assisted by Mr. T.D. Majumder, learned Addl. G.A. and Mr. S. Chakraborty, learned Counsel for the State Respondents.

The Tripura State Engineering Services are manned by the degree engineers and diploma engineers. The diploma engineers through the present writ petitions have made grievance against the Tripura State Civil Services (Revised Pay) Rules, 1999 (for short, ''the ROP Rules'') in the matter of alleged discrimination meted out to them vis-a-vis the degree engineers employed under the Government of Tripura.

The Petitioners'' services are governed by the Tripura Engineering Service Rules, 1987 which were amended by the Government Notification No. F.6(14)-PWD(E)/83 dated 31.7.89. The relevant portion of the Rules is extracted below:

(iv) A degree holder in engineering of the concerned branch will be recruited directly as Jr. Engineer, Gr-I;

(v) A diploma holder in engineering of the concerned branch will be initially recruited as Junior Engineer, Gr. II; after completing 4 years of service, he/she shall be designated as Junior Engineer, Gr. I.

Under the ROP Rules, 1999, the position of both the diploma holders and degree holders is as under: -

Tripura Engineering Service/Tripura Power Engineering Service

Existing Scale Scale w.e.f. Grade w.e.f. Scale w.e.f. Remarks Pay grade 1.1.96 1.1.99 1.1.99 fixation ________________________________________________________________________________________________ V(B) 1450-3710 5000-10300 V(B) 5000-10300 Entry for diploma holder. He will move to V(A) after 8 years of service V(A) 2100-4530 7450-13000 V(A) 7450-13000 Entry for degree 22(a)(i) holder. He will move to CAS 1 after 8 years of service CAS1 10000-15100 22(a)(i) 5. The grievance of the Petitioners is that before the enforcement of the new ROP Rules, a diploma holder in the engineering service initially recruited as Jr. Engineer Gr. JJ would become Jr. Engineer Gr. I after completion of 4 years. But under the present rule, the said period of 4 years has been enhanced to 8 years. The existing service rules have not yet been amended. The ROP Rules, 1999 have also not repealed the existing service rules, so the period of movement of Jr. Engineers from Gr-U to Gr-I (now re-designated as Gr-V(B) and Gr-V(A) cannot be 8 years. The Government by amendment also cannot deprive the Petitioners rights which have already accrued to them. Further, for the degree holders after completion of 8 years of service, a provision has been made for Career Advancement Scheme Increment (CASI) but no such provision of CASI has been made for the diploma holders. The Fourth Pay Commission has also recommended for CASI for the employees after completing a specific period of service which is fully applicable in the case of the Petitioners, but the Government has not provided CASI to the Petitioners. Although the nature of the duties are the same, yet a discrimination has been made in the case of the Petitioners.

The contention of the Respondents is that the Petitioners have not been discriminated under the new ROP Rules, 1999. Keeping in view the service conditions and qualifications of the Petitioners, the provisions for movement from 4 years to 8 years from Gr-V(B) to Gr-V(A) has been raised and CASI has been provided to the degree holders. The new ROP Rules, 1999 have been framed under Article 309 of the Constitution of India and as such the Tripura Engineering Service Rules, 1987 to the contrary have been repealed, even by impliedly the inconsistent provisions stand repealed. The new ROP Rules, 1999 will govern the new pay scales etc. The grievance of the Petitioners have been considered by the Fourth Pay Commission and also by the Government

In Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, the Supreme Court has observed as under:

It is well settled that equation of posts and determination of pay scales is the primary function of the executive and not the judiciary and, therefore, ordinarily Courts will not enter upon the task of job evaluation which is generally left to expert bodies like the Pay Commissions, etc. But that is not to say that the Court has no jurisdiction and the aggrieved employees have no remedy if they are unjustly treated by arbitrary State action or inaction. Courts must, however, realise that job evaluation is both a difficult and time consuming task which even expert bodies having the assistance of staff with requisite expertise have found difficult to undertake sometimes on account of want of relevant data and scales for evaluating performances of different groups of employees. This would call for a constant study of the external comparisons and internal relativities on account of the changing nature of job requirements. Several factors have to be kept in view while evolving a pay structure and the horizontal and vertical relativities have to be carefully balanced keeping in mind the hierarchical arrangements, avenues for promotion etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well. There can, therefore, be no doubt that equation of posts and equation of salaries is a complex matter which is best left to an expert body unless mere is cogent material on record to come to a firm conclusion that a grave error had crept in while fixing the pay scale for a given post and Court''s interference is absolutely necessary to undo the injustice.

In State of U.P. v. J.P. Chaurasia AIR 1989 SC 19 at page 25, the Supreme Court further observed as under:

The first question regarding entitlement to the pay scale admissible to section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among Ors. , evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should normally accept it The Court should not try to tinker with such equivalence unless it is shown that it was made with extraneous consideration.

In Union of India and others Vs. Makhan Chandra Roy, the Supreme Court cautioned that the question of enhancement of pay is within the domain of the appointing authority. The order passed by the Central Administrative Tribunal revising pay scale of employees on the ground that other employees belonging to same cadre are given more salary under the pay revision, was held without jurisdiction.

In Union of India (UOI) and Another Vs. P.V. Hariharan and Another, again their Lordships of the Supreme Court observed thus:

Quite often the Administrative Tribunals are interfering with pay scales without proper reasons and without being conscious of the fact that fixation of pay is not their function. It is the function of the Government which normally acts on the recommendations of a Pay Commission. Change of pay scale of a category has a cascading effect Several other categories similarly situated, as well as those situated above and below, put forward their claims on the basis of such change. The Tribunal should realise that interfering with the prescribed pay scales is a serious matter. The Pay Commission, which goes into the problem at great depth and happens to have a full picture before it, is the proper authority to decide upon this issue. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. Sometimes orders have been passed by Single Members and that too quite often Administrative Members, allowing such claims. These orders have a serious impact on the public exchequer too. It would be in the fitness of things if all matters relating to pay scales, i.e., matters asking for a higher pay scale or an enhanced pay scale, as the case may be, on one or the other ground, are heard by a Bench comprising at least one Judicial Member.

In State of Tamil Nadu v. M.R. Alagappan (1997) 2 SLR 554, the Deputy Agricultural officers claiming the pay equal to the pay as given to the Agricultural officers on the ground of performing identical duties. The two formed separate cadres of gazetted and non-gazetted officers governed by different sets of service rules. Minimum educational qualification for the Agricultural Officers for the two posts were also different. The Supreme Court rejected the claim of the Deputy Agricultural Officers for the pay equal to the Agricultural Officers. The doctrine of equal pay for equal work was not invoked in that case.

Coming to the instant case, it is true that the diploma holders prior to the enforcement of the ROP Rules, 1999, after remaining Junior Engineers in Gr-II for a period of 4 years, moved to Junior Engineers Gr-I and now in the ROP Rules, 1999, the period of 4 years has been enhanced to 8 years and the Career Advancement Scheme Increment (CASI) has been accepted for the degree holders only. The qualifications for the two are different, the responsibilities which may be entrusted to both may be different, though they may be discharging the same nature of duties, the expert body at the Government level after examining various aspects of the matter has enhanced the movement period of 4 years to 8 years from Gr-V(B) to V( A) for the degree holders. The representations made by the Petitioner''s Association were examined at the government level and also their claim was considered by the Fourth Pay Commission and has not been accepted. In view of the different qualifications and the nature of responsibilities which may be entrusted to them, the action of the Respondents cannot be said to be arbitrary, discriminatory or violative of Articles 14 and 16 of the Constitution of India. It is true that the Fourth Pay Commission recommended CASI for the employees after completion of the periods 7 years and 22 years of service in Gr-C and Gr-D in order to avoid stagnation in the service. But the Government has given movement to the diploma holders from Gr-V(B) to Gr-V(A) after working for a period of 8 years, in a different and better scale. The recommendations of the Pay Commission are not binding upon the Government and it is open to the Government to accept or not accept the recommendations of the Pay Commission looking to the financial resources of the State and service conditions of all the services in the State.

The Respondents have framed ROP Rules, 1999 under Article 309 of the Constitution of India which have overriding effect and shall prevail over the Petitioners'' Tripura Engineering Service Rules, 1987. The Clause 2 of the ROP Rules, 1999, inter alia, provides that save as otherwise provided by or under these Rules, these rules shall apply to persons appointed in regular scales of pay to services and posts in connection with the affairs of the State of Tripura. In view of this Clause 2, the ROP Rules, 1999 have overriding effect and if there is any inconsistency between the Petitioners 1987 Service Rules and the present ROP Rules, 1999, that impliedly stand repealed. It may also be mentioned here that the Petitioners themselves have opted the new ROP Rules, 1999.

The learned Counsel for the Petitioners vehemently argued that there is a great stagnation in the Petitioners'' service and even after a period of 30 years, the diploma engineers will not be able to get promotion to the post of Assistant Engineer and so, to avoid the stagnation in the service the Petitioners should get the Career Advancement Scheme Increment like the one provided to the degree holders, kept in category V(A). About the argument of the learned Counsel for the Petitioners, it may be observed that looking to all these factors under the new ROP Rules, 1999, on completion of 8 years service, a new better scale has been given to the Petitioners. As regards Career Advancement Scheme Increment to the degree holders, it may also be observed that they get Anr. better scale after completion of 8 years of service. Looking to their educational qualification, there cannot be said any discrimination made by the Government between the Petitioners and the degree holders.

The decisions of the Hon''ble Supreme Court in State of Haryana, Vs. Shamsher Jang Bahadur, etc. etc., , Madan Mohan Pathak and Another Vs. Union of India (UOI) and Others, , Ex-Capt. K.C. Arora and Another Vs. State of Haryana and Others, T.R. Kapur and Others Vs. State of Haryana and Others, Tamil Nadu Teachers Association Vs. Association of the Heads of the Government (B Wing) High and Higher Secondary Schools and Others, , Commissioner of Income Tax, Ernakulam Vs. P.K. Noorjahan (Smt), relied upon by the learned Counsel for the Petitioners are on different facts and do not render any assistance to the Petitioners in the instant case. As regards the decision of the Supreme Court in Joint Action Council of Service Doctors'' Organisations and Others Vs. Union of India (UOI) and Another, referred to by the learned Counsel for the Petitioners, in that case the Supreme Court held that the report of the Pay Commission though recommendatory in nature, it cannot be rejected by the Government without cogent reasons. In the instant case, the rejection of the recommendation of the Pay Commission regarding Caeer Advancement Scheme Increment cannot be said to be without reasons.

In the result, both the writ petitions have no force and accordingly they are dismissed. Costs on parties.