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Judgment
N.S. Singh, J.—In the above 2 Civil Rules the Petitioners made a prayer for a direction to the Respondents to remove the nomalies as a result of the pay revision as per Memorandum issued by the Government of Tripura, Finance Department under No. F.4(71)-FIN(PC)/93, dated 17.02.1995 and Memorandum of even number of the same Department, dated 17.05.1995 approving pay scales of the employees of the Agartala Bench of the Gauhati High Court as in Annexures - A and B to the writ petition in Civil Rule No. 106 of 1996 and also for setting aside the impugned decision of the office of the Accountant General, Tripura under Office order dated 19.08.1994 and the decision of the Deputy Registrar of the Gauhati High Court of 26th September, 1994 as in Annexure-H and Annexure-I to the writ petition (being Civil Rule No. 525 of 1994). These 2 Civil Rules involve the common question of facts and laws nnd, as such, I propose to dispose of these two cases with the following judgment and order:
Heard Shri D.K. Biswas and Shri S.M. Chakraborty, learned Counsel for the writ Petitioners in both the Civil Rules and Shri U. B. Saha, learned Government Advocate for the Respondents.
The fact ofthe above two cases in a short compass are as follows:
According to the writ Petitioners in Civil Rule No. 106 of 1996, the Registrar, Gauhati High Court, the Respondent No. 1 herein, as directed by the Hon''ble Chief Justice sent a proposal to the Government of Tripura for allowing the revision of pay scales of the employees of the Agartala Bench indicating specific scale of pay for the existing posts, but the Government of Tripura did not agree to the proposal and instead of approving the scales proposed by the High Court sanctioned revised scales according to their decision and such scales sanctioned by the Government of Tripura had affected the employees adversely and as such the High Court Employees Association, Agartala Bench of the Gauhati High Court filed a writ petition before this Court under Civil Rule No. 173 of 1990. By the judgment and order of a Division Bench of this Court passed on 1.09.1992 in Civil Rule No. 173 of 1990 directed the Respondents to allow revision of pay scales to the employees of the Agartala Bench of the Gauhati High Court according to the proposal sent by the High Court. Thereafter, the Government of Tripura, Finance Department issued two (2) Memoranda under No. F.4(71)-FIN(PC)/93, dated 17.02.1995 and even number, dated 17.05.1995 sanctioning certain pay scales to the employees of the Agartala Bench of the Gauhati High Court. From the said two Memoranda it would be seen that the scales approved by the Govenmient of Tripura are all Tripura scales, but before this Revision the employees of the Agartala Bench of the Gauhati High Court were allowed two different scales of pay, one existing in Tripura and other in Assam State. It is also the case of the Petitioners that as a result of the implementation of the aforesaid Tripura Pay Scales, the Petitioners have suffered serious loss in as much as certain huge amount of money are to be recovered from them on the grounds that they have over drawn the same. The Petitioners also pointed out the fact that one Shri Jiban Krishna Roy, who is most junior to all the Petitioners and holding the post of Office Superintendent (Accounts) with effect from 28.04.1993 has been allowed fixation of Rs. 3880/- on 28.04.1993 and whereas the pay of the Petitioners have been fixed at a much lower rate. For better appreciation in the matter the Petitioners had formed a chart/table which is quoted as here under:
Seniority Position
Post Held
Pay on 1.9.92/or after 1.9.92
Sri Anil Kr. Bhowmik
Supdt.-cum Stamp Reporter.
Rs.3510/-
Sri Nanda Dulal Das
Sr. Grade Translator-cum-I/C Paper Book Section.
Rs.3425/-
Sri Sunil Chandra Banik
Superintendent
Rs.3425/-
Sri Shibnarayan Das
Office Superintendent
Rs.3425/-
Sri Tikendrajit Majumdar
Office Superintendent
Rs.2750/- on 25.9.92
Sri Jiban Krishna Roy
Office Supdt. (Accounts)
Rs.3880/- on 28.4.93
The Petitioners also highlighted the facts that the authority concerned ought to have passed necessary orders allowing each of the Petitioners to draw the pay of Rs. 3880/- per monnth with effect from 28.04.93 in the scale of pay of Rs. 2100-75-2700-80-3340-85-4530/-.
In the case viz. Civil Rule No. 525 of 1994 the Petitioner-Shri Tikendrajit Majumdar who is also one of the Petitioners in Civil Rule No. 106 of 1996 had challenged the validity of the impugned decision of the office of the Accountant General, Tripura dated 19.08.1994 as in Annexure-H as well as the impugned decision of the Deputy Registrar of Gauhati High Court, Agartala Bench made on 26.09.1994 as in Annexure-I to the said writ petition contending inter alia that he is senior to one Shri Jiban Krishna Roy, the Office Superintendent (Accountant ) in Agartala Bench of the Gauhati High Court who was promoted to the rank of Office Superintendent (Accounts) on and from 28.4.1993 but the Petitioner has been afforded less scale of pay than what a junior like Shri Jiban Krishna Roy has been allowed to draw the higher rate of pay despite the order and direction of the Hon''ble Chief Justice of the Gauhati High Court to step up the pay scale of the writ Petitioner Shri Tikendrajit Majumdar in the scale of Rs. 1450-60-1930-65-2450-70-3710/-(Annexure-C)with effect from 21.9.1992 as his junior Shri J. K. Roy, Head Comparing Clerk was allowed to drawthe scale of Rs. 1450-60-1930-65-2450- 70-3710/-.
The Respondents contested the cases of the writ Petitioners by contending inter alia that the cases are not maintainable as the same would amount to review of the judgment and order dated 1.09.1992 passed by this Court in Civil Rule No. 173 of 1990. According to the Respondents, grant of higher pay to a junior official is permissible if there are justifiable grounds in doing so and, as such, no senior can not invoke the equality doctrine. It is also the case of the Respondents that the Hon''ble Chief Justice under the relevant order as in Annexure- C to the writ petition being Civil Rule No. 525 of 1994 in the case of Shri Tikendrajit Majumdar specifically stated that if the pay scale as ordered is not approved by the Accountant General, Tripura, Agartala and if there is any excess payment thereof, this shall have to be refunded and, as such, there is no illegality or irregularity in issuing the Government Memorandum dated 17.02.1995 and 17.05.1995 as in Annexure A and B to the writ petition in Civil Rule No. 106 of 1996 and the impugned decisions/orders dated 19.08.1994 and 26.09.1994 as in Annexure-H and I to the writ petition in Civil Rule No. 525 of 1994.
Shri D.K. Biswas, learned Counsel for the writ Petitioners at the veiy outset contended that in view of the Government Office Memorandum dated 23rd August, 1986, issued by the Government of Tripura, Finance Department under No. F.19(1)-F in (G)/83 dated 23rd August, 1986, the pay of a senior Government servant in the revised scale in the higher post should be stepped up to a figure equal to the pay fixed for the junior Government servant in the identical higher post on his promotion on or after 1.01.1982, and the stepping up should be done with effect from the date of promotion of the junior officer and should be subject to the service conditions as indicated in the said Memorandum. Supporting the case of the Petitioners Shri D.K. Biswas, drew my attention to the said Memorandum dated 23rd August, 1986. He also further submitted that in view of the relevant Memorandums issued by the Competent authority from time to time under G.I.M.F.O.M No. F.2(78)-E.III(A)/66, dated the 4th February, 1966 and G.I.M.F., O.M No. F.6(1)-E III(B)/68, dated the 8th January, 1968, the anomalies of pay amongst the junior and senior official should be removed by stepping up of pay of senior official on promotion drawing less pay than his junior. In this regard Shri D.K. Biswas, learned Counsel for the writ Petitioners also drew my attention to the Memorandums which are quoted below:
Removal of anomaly by stepping UP of pay of Senior on promotion drawing less than his Junior: In order to remove the anomaly of a Government servant promoted or appointed to a higher post drawing a lower rate of pay in that post than another Government servant junior to him in the lower grade and promoted or appointed subsequently to another identical post, it has been decided that in such cases the pay of the senior officer in the higher post should be stepped up to a figure equal to the pay as fixed for the junior officer in that higher post. The stepping up should be done with effect from the date of promotion or appointment of the junior officer and will be subject to the following conditions, namely:
(a) Both the junior and senior officers should belong to the same cadre and the posts in which they have been promoted or appointed should be identical and in the same cadre;
(b) The scales of pay of the lower and higher posts in which they are entitled to draw pay should be identical;
(c) The anomaly should be directly as a result of the application of the rule, for example, if even in the lower post the junior officer draws from time to time a higher rate of pay than the senior by virtue of grant of advance increments, the above provisions will not be invoked to step iq) the pay of the senior officer.
The orders refixing the pay of the senior officers in accordance with the above provisions shall be issued under F.R.27. The next increment of the senior oC Bcers will be drawn on completion of the requisite qualifying service with effect fit)m the date of refixation of pay.
G.I.M.F., O.M. No. F.2(78)-E. III(A)/66, dated the 4th February, 1996.
When special pay is taken into account: It may happen that a senior person promoted to the higher post before completing three years in the special pay post draws less pay dun his junior yiho is promoted after completing diree years in the special pay post. Where such cases occur, the pay of the senior should be stepped up to the level of pay of the junior from the date of promotion of the letter, provided the junior was not drawing a higher pay than the senior from time to time in the lower post and the lower and the higher posts held by the junior and the senior belong to the same cadre. G.I.M.F,O.M.No. F.6(1)-E.III(B)/68, dated the 8th January, 1968.
On the other hand, Shri U.B. Saha, learned Government Advocate, for the Respondent Nos. 2, 3 and 4 in Civil Rule No. 106 of 1996 and State Respondent in Civil Rule No. 525 of 1994, contended that the State Respondents had complied with the directions, and order pa''Jsed by this Court in Civil Rule No. 173 of 1990 and, as such the subsequent writ petitions being the present writ petitions are not maintainable in view of the decisions of the Apex Court rendered in a case between State of Haryana and others Vs. K.N. Dutt, Shri Saha also relied upon a decision of the Apex Court in a case between State of Andhra Pradesh and Another Vs. T. Gopalakrishnan Murthi and Others, and submitted that the recommendation of the Hon''ble Chief Justice as in Annexure-C to the writ petition (Civil Rule No. 525/94) for stepping up the pay scales of the writ Petitioner, Shri Tikendrajit Majumdar cannot be acted upon as the same is not accepted or approved by the Government and as such, the High Court would not be justified in issuing the writ of mandamus to the Goverament-Respondent to implement such recommendation of the Hon''ble Chief Justice as seen in document marked as Annexure-C. In support of his contention, he also relied upon another decision of the Apex Court reported in AIR 1975 SC 889 ( Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, In my considered view those decisions of the Apex Court rendered in the aforesaid four cases except the case reported in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, are not applicable in the instant case in as much as in the case of State of Andhra Pradesh and Another Vs. T. Gopalakrishnan Murthi and Others, the recommendations of the Chief Justice to equate pay scale of High Court staff with those of equivalent posts in secretariat is not proper and legal but in the instant case the factual thing is quite different from that case . Moreover, the conteiitions of Shri U.B. Saha, Learned. Government Advocate that the present cases are not maintainable holds a little water.
For better appreciation as well as for just determination of the real points in controversies, it would be noteworthy to reproduce certain relevant facts available in the relevant records with regard to the service conditions of one of the writ Petitioner Shri Tikendrajit Majumder and that of his junior Shri Jiban Krishna Roy and, as such, I hereby reproduce the history of their appointment till 21.09.1992 and the comparative table of it, as here-under:
Mr. Tikendrajit Majumdar. Mr. J.K. Roy
Mr. T. Majumdar joined on 2.12.70 as a Typist Cleik in the Tripura Pay Scale of Rs. 125-200/- 1. Mr. J. K. Roy joined on 9.02.74 as a Typist Clerk in the Tripura Pay Scale of Rs. 125-200/-
On 12.06.83 the basic pay of T. Majumdar was Rs. 625/- in the pay scde of Rs. 430-850/- 2. On 12.6.83 the basic pay of Mr. Roy was Rs. 600/- in the pay scale of Rs. 430-850/-.
0n 12.06.83 the basic pay of T. Majumder stood at Rs. 750/- in the pay scale of Rs. 430-8S0/-due to refixation arising out of 17th Amendment rules of 1986 effective from 01.01.1982. 3. On 12.6.83 the basic pay of Mr. Roy stood at Rs. 725/- in the pay scale of Rs. 430-850/- due to refixation arising out of 17th Amendment rules of 1986 effective from 01.01.1982.
On 13.06.83 basic pay of Mr. Majumdar became Rs. 800/- due to promotion to the post of Translator in the revised scale of Rs. 550-1245/. w.e.f. 01.01.1982. 4. On 13.06.83 basic pay of Mr. Roy was same and at Rs. 725/-
On 20.11.86 the basic pay of Mr. Majumdar was Rs. 880/- in the above pay scale but Mr. Majumdar was transferred from the post of Translator and posted to the post of U.D.A.(Rs. 550-1245) 5. On 20.11.86 the basic pay of Mr. Roy was Rs. 800/- in the pay scale of Rs. 430-
On 21.11.86 the basic pay of Mr. Majumdar re- mained at Rs. 880/- in the above pay scale. 6. 0n 21.11.86 the basic pay of Mr. Roy became Rs. 845/- as Cashier due to his promotion to the unrevised Assam Pay Scale of Rs. 670-35-845.EB.1020-EB-40-1500/-.
7.0n 01.01.89 the basic pay of Majumdar was fixed at Rs. 2230/- in the Tripura pay scale of Rs. 1250-45-1610-2010-55-2890/-. 7. 0n 01.01.89 the basic pay of Mr. Roy was fixed at Rs. 3275/- in the pay scale of Rs. 1475-40-1635-50-2035-EB-60-2395-80-2875-100-3575-125-3825/- which is the revised pay scale of Rs. 670- 1500/- made by the Govt. of Assam w.e.f. 01.01.89.
On 01.06.91 the basic pay of Mr. Majumdar was fixed at Rs. 2395/- in the Tripura pay scale of Rs. 1250-2890/-. 8.0n 01.06.91 the basic pay of Mr. Roy was fixed at Rs. 3475/- in the Assam Pay Scale of Rs. 1475-3825/-.
On 29.05.92 the basic pay of Mr. Majumdar was fixed at Rs. 2450/- due to his promotion to the post of Commissioner of Affidavit in the Tripura pay scale of Rs. 1450-3710/-. 9.0n 29.05.92 the basic pay of Mr. Roy was fixed at Rs. 3475/-in the Assam Pay Scale of Rs. 1475-3825/-.
On 21.09.92 the basic pay of Mr. Majumdar was fixed at Rs. 2600/- due to promotion to the post of Office Supdt in the Tripura Pay Scale of Rs. 2000/- 75-2750/-80-3390 -85-4410/-. 10. On 21.09.92 the basic pay of Mr. Roy was fixed at Rs. 3710/- due to his promotion to the post of Head Comparing Clerk in the pay scale of Rs. 1450-60-1930 -65-2450-703710/-
It is well settled that so far the expenditure of the High Court is concerned, it has to be charged on the consolidated fund of the State, which is not subject to the vote of the Legislative Assembly. Therefore,once the Appropriate Bill is passed providing the appropriation out of the consolidated fund of the State, thereafter the State has no business to direct the High Court in what way it should regulate its business. Similarly when the Hon''ble Chief Justice in his administrative capacity passed certain orders relating to the stepping up of the pay scale of the officials working in the Registry of the High Court, cannot be bound by any orders issued by the Govt, in its executive capacity. Therefore, in my considered view the observations of the Hon''ble Chief Justice with regard to the stepping up of the pay scale of Shri Tikendrajit Majumdar one of the writ Petitioners subject to the approval by the Accountant General, Tripura and also a condition imposed upon the said Shri Tikendrajit Majumdar for an undertaking to that effect is not tenable in the eye of law, as seen in Annexure-C to the writ petition in Civil Rule No. 525 of 1994.
The Office Memorandum dated 23rd August, 1986 issued by the Government of Tripura, Finance Department, is a well established guideline and principle that the pay of a senior Government servant in the revised scale in the higher post should be stepped up to a figure equal to the pay fixed for the junior Government servant m the identical higher post on his promotion on or after 1.1.1982 subject to the conditions indicated in the said Memorandum.
It is well settled that although the doctrine of "equal pay for equal work" does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of "equal pay for equal work", as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of "equal pay for equal work" will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, abstract doctrine of "equal pay for equal work" as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. In this regard a reference can be made to a decision of the Apex Court rendered in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, and also a case rendered in Dhirendra Chamoli and Another Vs. State of U.P., In the instant case there is a discrimination and as such classification amongst the writ Petitioners and the said Shri Jiban Krishna Roy relating to their different pay scales is xmreasonable and such unequal pay is based on no proper classification. Rather, it is an admitted fact that the Petitioners are all seniors to said Shri Jiban Krishna Roy in the post. Hence, I am of the view that the provisions of Article 14 will at once to be attracted in the present cases.
In my considered view, the writ Petitioners had made out a case to justify for their claim for stepping up their pay equal to the pay fixed for their junior official, namely, Shri Jiban Krishna Roy viz. the pay of Rs. 3880/ with effect from 28.04.1993 in the scale of pay of Rs. 2100-75-2700-80-3340-85-4530/-.
14.For the forgoing reasons and discussions made above, the Respondents are directed to allow the writ Petitioners to get pay of Rs. 3880/- with effect from 28.04.1993 in the scale of pay of Rs.2100-75-2700.80-3340-85-4530/-. In view of the above position, the Memorandums dated 17.02.1995 and 17.05.1995 as in Annexuers A and B to the writ petition (Civil Rule No. 106/96) to the extent of the fixation of the pay scale of Office Superintendent (HC) and Senior Grade Translator cum-Incharge Paper Book Section(HC); as well as the impugned decision/order dated 19.08.94 (Annexure-H) and the impugned decision/order dated 26.09.94 (Annexure-I) in Civil Rule No. 525 of 1994 are hereby set aside.
In the result, this two Writ petitions are allowed. Considering the facts and circumstances of the cases, parties shall bear their own costs.