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Judgment
On 6th June, 2007 a Pay Revision Committee was set up by the
Government of India to recommend pay revision for class-I and class-II
officers of Major Port Trust and Dock Labour Boards to be effective from
1st January, 2007.
On 26th July, 2010, by a communication, the decision of the Ministry of
Shipping, Government of India to revise the pay scales of these officers
was published. In Clause-1.3 of the decision, the pay scale of pilots and
marine engineers was fixed at Rs. 16,000/- to 20,800/- with upgradation
of pay scale of promotional posts not exceeding the pay scale of category-
I port posts. On satisfactory completion of five years of service as
Berthing Masters of Kolkata Port Trust now called Dock Pilots they would
be given a scale of pay of Rs. 13000-18250.
This recommended revision of scale of pay was deliberated upon by the
Kolkata Port Trust between March and April 2011. The end result was
that it took the decision that the scale of pay for pilots and marine engineers was to be notionally fixed from 1st January, 1997 without any
benefits in the shape of arrears upto 31st December, 2006.
If pay was revised from 1st January, 1997, there would be substantial
increase of pay as on 31st December, 2006 and substantial increase in
actual annual pay on and from 1st January, 2007, with incidental and
consequential benefits.
On 19th July, 2013 the under Secretary Government of India Ministry of
Shipping wrote to the Kolkata Port Trust whether in terms of the
Ministry''s Pay Revision Order dated 26th July, 2010, the pay scale of
Marine Officers was upgraded and whether the same "methodology for
fixation of pay" for revision of pay was adopted.
On 8th September, 2014 the Kolkata Port Trust apprised the Secretary
Ministry of Shipping, Government of India about the upgradation of the
pay scales as follows_
" i) In terms of para 1.3 of the Pay Revision Order dated 26.07.2010, the
pay scale of pilots (Master Foreign Going) and marine engineers (MOT-I)
has been upgraded to the pay scale of Rs. 16000-20800/-. The pay
scales of the promotional posts of Dock Master and other equivalent
Marine Officers has been upgraded to the pay scale of Rs. 17500-
22300/- and the pay scale of Harbour Master, Manager Marine and other
existing equivalent marine categories to the pay scale of Rs. 18500-
23900/-.
ii) In terms of para 1.4 of the Pay Revision Order dated 26.07.2010, Dock
Pilots (erstwhile Berthing Masters) upon completion of 5 years of
satisfactory service has been given the scale of pay of Rs. 13000-18250/.
Consequently, the pay scale of ADM and DDM had also been upgraded to
Rs. 14500-18700/- and Rs. 16000-20800/- respectively."
In paragraph 3 (v) of the affidavit-in-opposition the Kolkata Port Trust
stated that succumbing to the strike threat made by the Pilots and marine engineers their scale of pay was given retrospective effect from 1st
January, 1997, on their undertaking to re-pay any excess sum received
should the Ministry not approve the upgraded scale of pay.
On 15th January, 2015 the Shipping Ministry wrote inter alia to the
Kolkata Port Trust that upgradation of pay scales of Marine Officers was
to be extended only after concurrence of the Ministry of Finance.
On 11th August, 2015 a representation was made by the Kolkata
Berthing Association to the Kolkata Port Trust for adopting a uniform
method in upgradation of pay under para 1.3 and para 1.4 of the Pay
Revision Order dated 26th July, 2010 which was modified on 3rd August,
2010. In other words, they wanted the same treatment as pilots and
marine engineers.
On 14th December, 2015 the Kolkata Port Trust took a very firm stand
with regard to the insistence of the Ministry that concurrence of the
Ministry of Finance had to be taken before implementation of para 1.3
and 1.4 of the pay revision order. They told the Ministry that this would
have several implications and that the upgradation could not be kept on
hold.
This letter is very important for the purpose that the Kolkata Port Trust
rejected the demand of Kolkata berthing masters for adoption of similar
standards as in the case of pilots, on the ground that the upgradation of
pilot was subject to concurrence of the Ministry of Finance.
On 20th December, 2016 the Ministry of Shipping wrote to the Chairman
of all Major Port Trusts that the pay revision dated 26th July, 2010, that
the upgradation was discussed with the Ministry of Finance based on the
recommendations of the Anomaly Committee. The proposal inter alia for
revision of pay-scales of pilots, marine engineers and berthing masters or
dock pilots was referred to the Department of Expenditure, Ministry of
Finance. This Department did not agree to the upgradation. Recovery of enhanced pay made by the port should be initiated by them. On 3rd
February, 2017 Kolkata Port Trust wrote back to the Ministry of Shipping
that the upgradation was in accordance with the Ministry''s directive.
Furthermore, this upgraded scale of pay was notified in the Kolkata Port
Trust Employees (Recruitment Seniority and Promotion) Regulations,
2013 notified on 15th October, 2013. The upgraded revised scale of pay of
pilots, dock pilots etc. had been allowed with the approval of the
Shipping Ministry and there was no need to initiate the process of
recovery of any excess sum received in this case.
Mr. Bandopadhyay for the petitioner made very simple and clear cut
submissions. He said that the pilots and berthing masters, who are now
re-designated as dock pilots were similarly situated. The pay scales of
pilot, marine engineers and members of the writ petitioners association
(berthing masters) have been increased. If the pay scale of pilots and
marine engineers could be increased with retrospective effect, equality
and fairness demanded that such retrospective effect should have also
have been given to the pay scale of members of the writ petitioners
association. Learned Counsel also stated that the ground cited by the
Kolkata Port for giving effect to the revision of pay scale of the pilots and
marine engineers with retrospective effect to avoid a strike called by them
was not at all a very cogent ground.
On the other hand, it was Mr. Basu learned senior Advocate for the
Kolkata Port submitted that under Section-111 of the Major Port Trusts
Act, 1963 the Kolkata Port Trust was subject to the supervision of the
Central Government. The revision of pay order of the Ministry of
Shipping dated 26th July, 2010 needed the approval of Ministry of
Finance for implementation. The Ministry of Finance did not approve the
proposals. The Kolkata Port Trust says that it obtained the consent of the
Ministry of Shipping and implemented the proposal. Therefore according
to Mr. Basu the implementation of the proposal was awaiting sanction of the Ministry of Finance. In that event this pay revision order had no
finality in the eyes of law. Another group of persons being the members
of the petitioner association could not be treated in the same manner as
the pilots and the marine engineers. Moreover, if this policy was
ultimately revoked the beneficiaries of this policy would have to be give
back the benefit they had received.
In my opinion, the conduct of the Kolkata Port Trust authorities shows
that they have enough independent power to revise pay scales,
irrespective of the concurrence of the Ministry of Finance. They had
implemented it with the concurrence of the Ministry of Shipping. In fact
in the correspondence discussed above they have very defiantly stated to
the Central Government, including the Finance Ministry that the pay
revision order dated 26th July, 2010 had been implemented by them with
retrospective effect in favour of dock pilots and marine engineers to avoid
a strike by them. It is evident from their stand taken by them that
according to them they did not need any other approval to enhance the
pay scale.
This revision in pay scales has been acted upon for a long time.
The berthing masters or dock pilots had a legitimate expectation to be
similarly treated as they were doing more or less the same work as the
pilots and marine engineers. In denying the same benefit to them, in my
opinion, the port authorities acted unfairly. This resulted in
discrimination.
In my view, the Kolkata Port Trust should be acting in a similar manner
in favour of the members of the petitioner association as they have done
for pilots and marine engineers. They are similarly situated as the pilots
and marine engineers. I direct them to give effect to their revised pay
scales in respect of dock pilots in the same manner as they have done
with regard to pilots and marine engineers with retrospective notional effect from 1st January, 1997 within eight weeks of communication of
this order, on the express condition that if for some reason this revision
of pay scale is reversed at the instance of the Central Government the
beneficiaries of this revised pay scale that is members of the petitioner
association would have to refund or adjust the excess sum received by
them.
On the basis of Mr. Basu''s submission on behalf of the Port I also clarity
that in the event the earlier decision to enhance the pay scale of pilots
and marine engineers is reversed, at the instance of the central
government, this revision of pay scale for Dock Pilots will also have to
follow suit. In that case the members of the association cannot contend
that any permanent right has been created in their favour by this order.
This writ application is allowed to the above extent.
Certified photocopy of this Judgment and order, if applied for, be
supplied to the parties upon compliance with all requisite formalities.