Sachin Apsunde & Ors vs Union Of India & Ors

The petitioner before this Court has filed this present writ petition being aggrieved by the order dated 23/12/2013 passed in the matter of

implementation of revised pay structure.

Learned counsel for the petitioner has drawn attention of this Court towards the judgment dated 17/4/2017 passed by the Division Bench in

W.A.No.19/2017 (Bank Note Press, Dewas Vs. Pranay Singh Solanki) and her contention is that the controversy involved in the present case stands

concluded by the aforesaid judgment delivered by the Division Bench. The order dated 17/4/2017 reads as under:

By this writ appeal, the appellants (respondents No.2 and 3 in the writ petition) are challenging order dated 10.06.2016 passed in Writ Petition

No.6457/2015, whereby the learned Writ Court quashed Clause 3 of order dated 02.05.2014 on the ground that it is arbitrary, discriminatory and

violative of Articles 14, 16 and 21 of the Constitution of India and directed that Junior Machine Assistant will be entitled for Grade Pay of Rs.2,400/-

with effect from 01.11.2008; and in respect of Senior Machine Assistant, the learned Writ Court directed that they will be entitled for Grade Pay of

Rs.2,800/- with effect from 01.11.2008. The learned Writ Court also directed the appellants to revise pay of respondents No.1 to 10 (writ

petitioners) in the light of aforesaid and they shall be entitled for all other admissible allowances viz., DA, TA, HRA and Overtime, Night Duty

Allowances, Incentives etc. by revising their pay, keeping in view the aforesaid and the appellants were directed to grant benefit of the same and to

release arrears within a period of ninety days from the date of the order.

Facts of the case are that respondents No.1 to 10 are the employees of the Security Printing & Minting Corporation of India Limited and not Union

of India (appellant No.2), as they have been appointed after 10.02.2006 i.e. the date of formation of appellant No.2 â€" Corporation. They filed a

writ petition (Writ Petition No.6457/2015) assailing three orders dated 23.12.2013 (Annexure P/4), 25.11.2014 (Annexure P/12) and 02.05.2014

(Annexure P/5) passed by the appellants, whereby certain benefits of revision of 5th and 6th Pay Scales and certain benefits which were personal to

other employees were granted to the employees of the Union of India, as per the recommendations of the Pay Commission in order to remove the

anomalies of the pay scales, which were personal to them. Respondents No.1 to 10 were appointed directly as Junior Machine Assistants with a

Grade Pay of rs.1,900/- by the appellants on or after December, 2008 i.e. after the corporatization of the appellant (10.02.2006). After

corporatization of the appellant, conciliation proceedings under Section 12 (3) of the Industrial Disputes Act, 1947 were carried out between the

appellant and the employees of the Union of India and a Memorandum of Settlement was executed on 15.09.2008 in the matter of terms and

conditions of permanent absorption of Mints, Presses and Paper Mill employees on deemed deputation to the Rolls of the appellants.Â

Respondents No.1 to 6 were initially appointed on the post of Junior Machine Assistant in the regular pay scale of Rs.5200-20200 + Grade Pay of

Rs.1,900/-. Respondents No.7 to 10 were initially appointed on the post of Senior Machine Assistant in the pay scale of Rs.520020200 + Grade Pay

of Rs.2,400/-. They have been confirmed on their respective post by order dated 11.02.2014. Respondents No.1 to 6 have further been promoted

to the post of Senior Machine Assistant in the regular pay scale of Rs.5200-20200 + Grade Pay of Rs.2,400/-.Â

The grievance of respondents No.1 to 10 (writ petitioners) before the learned Writ Court was that certain persons who were appointed on the post

of Mazdoor and later on promoted as Cook and further promoted to the post of Junior and Senior Machine Assistants without holding qualification of

the post, have been granted higher pay scale. They are aggrieved by grant of higher pay scale to the persons who were Mazdoor and later on

promoted as Cook and further promoted on the post of Junior and Senior Machine Assistants.Â

Order dated 02.05.2014 provides for grant of higher grade pay to Senior and Junior Machine Assistants to the tune of Rs.2,800/and Rs.2,400/-

respectively. However, there is a rider to the aforesaid grant and paragraph No.3 of the same order provides that the benefit of higher grade pay

will be given only to those employees who were in service employees, meaning thereby, who were initially appointed in Bank Note Press, Dewas prior

to formation of the Security Printing and Minting Corporation of India Limited. The contention of respondents No.1 to 10 is that the Grade Pay is

attached to a post and once a decision has been taken to grant Grade Pay to a particular post, it has to be same for all the employees working in an

organization.

The stand of the appellant was that document / order dated 02.05.2014 has rightly been issued by the Bank Note Press, Dewas. Mazdoors were

promoted to the post of Cook and later on promoted to the post of Junior Machine Assistant and Senior Machine Assistant even though they were not

having qualification for the post in question. The employees (since inception), who were working in the Bank Note Press, Dewas have been granted

benefit of higher Grade Pay in order to revolve the anomaly of Grade Pay on account of recommendations of 5th Pay Commission. He also

submitted that respondents No.1 to 10 and employees who were initially appointed under the Bank Note Press, Dewas formed two classes of

employees, and therefore, respondents No.1 to 10 can claim parity with those employees who were continuing in Bank Note Press, Dewas prior to

establishment of the Security Printing and Minting Corporation of India Limited.

The learned Writ Court, after appreciating the arguments of the learned counsel for the parties, came to the conclusion that Clause 3 of the Office

order dated 02.05.2014 provides only in respect of “in service employees†that they will be receiving Grade Pay for the post of Senior Machine

Assistant at the rate of Rs.2,800/- and for Junior Machine Assistant Grade Pay at the rate of Rs.2,400/- with effect from 01.11.2008. Clause 3 of

order dated 02.05.2014 is not only discriminatory and arbitrary, but it has created an unreasonable classification and it is a class legislation which is

violative of Articles 14, 16 and 21 of the Constitution of India. Relying on a Division Bench decision of this Court at Principal Seat, Jabalpur in the

case of Jugal Kishore Singh and others v. State of Madhya Pradesh reported in 2015 (2) MPHT 152 (DB), the learned Writ Court came to the

conclusion that the aforesaid clause 3 of order dated 02.05.2014 is arbitrary, discriminatory and violative of Articles 14, 16 and 21 of the Constitution

of India and quashed the same; relevant part of the order dated 06.10.2016 passed in Writ Petition No.6457/2015 reads, as under: -

“In the present case, the undisputed facts reveal that the petitioners No.1 to 6 were appointed as Junior Machine Assistant with a fixed grade pay

of Rs.1900/-. They were appointed in the year 2008. Petitioner Nos. 7 to 10 were appointed as Senior Machine Assistants and they were granted

grade pay of Rs.2400/-. All of them were confirmed later on. Petitioner Nos. 1 to 6 were later on promoted to the post of Senior Machine Assistant in

the regular pay scale of Rs.5200 â€" 20200 + Grade Pay Rs.2400/-. The dispute arose only on account of issuance of memorandum dated 2/5/2014.

The same reads as under :

Clause 3 provides that only in respect of in service employees, they will be receiving grade pay for the post of Senior Machine Assistant @ Rs.2800/-

and for Junior Machine Assistant @ Rs.2400/- w.e.f. 1/11/2008. An attempt has been made before this Court to justify two types of grade pay to a

particular post.

This Court after hearing learned counsel for the parties is of the opinion that once it has been admitted in the return that the employees whether they

were appointed by the Bank Note Press, Dewas or whether they were appointed by the Security Printing and Minting Corporation of India Ltd., are

performing the same job and they are having the same duties and, therefore, by no stretch of imagination for a particular post there can be two pay

scales and two grade pays. Not only this, the petitioners stand on better footing. They are holding qualifications for the post of Senior and Junior

Machine Assistants. Their appointments and promotion is in consonance with the recruitment Rules, they are admittedly senior to other employees in

the cadre, who were working on the post of Mazdoor, Cook etc., and only on account of length of service, they have been granted designation of

senior and junior machine assistant. The net result is that the petitioners who have been appointed on the post of Junior Machine Assistant were given

grade pay of Rs.1900 whereas the persons who does not hold a qualification and who have reached the level of Junior Machine Assistant from the

post of Mazdoor and cook are being granted grade pay of Rs.2400/-. Persons who does not have qualification were getting grade pay of

Rs.2800/w.e.f. 1/11/2008, the action of the respondent is certainly contrary to the recruitment Rules. No statutory provision of law has been brought to

the notice of this Court which provides for grant of lesser pay to a person who holds the qualification and who has been appointed through a

process of selection. Clause 3 of order dated 2/5/2014 is not only discriminatory and arbitrary, but it has created an unreasonable classification and it is

a class legislation which is violative of Article 14, 16 and 21 of the Constitution of India.

A similar problem arose in respect of grant of pay scale to the employees of the State of Madhya Pradesh and a classification was made by the State

Government in respect of the employees appointed through M. P. Public Service Commission and employees who were promoted to a particular post

by clearing departmental examination / on the basis of recommendations of Departmental Promotion Committee. The Division Bench of this Court,

presided over by Hon'ble Shri Justice A. M. Khanwilkar, the then Chief Justice, in the case of Jugal Kishore Singh and others Vs. State of Madhya

Pradesh reported in 2015 (2) MPHT 152 (D.B.) in paragraphs 6 to 9 has held as under :

“6. In view of these findings, the persons like petitioners cannot be discriminated in the matter of grant of revised pay scale (Rs.2200-4000/-)

merely on the basis of their sources of recruitment, specially when they were also discharging the similar duties as were assigned to those who were

appointed on direct recruitment basis.

In fact the relief, as claimed in the writ petition,is not in appropriate manner as Schedule-I of the Rules of 1988 is called in question in this writ

petition, saying it to be ultra vires Article 14 of the Constitution of India. Inasmuch as, prescription of pay scale to the post as indicated in Item No.5, 6

and 7 of the said Schedule, is alleged. On an examination it is found that only the pre-revised pay scale of Rs.1820-3300/- is mentioned against the pay

scale prescribed in the aforesaid post shown in Item No.5,6 and 7 of Schedule-I of the Rules, therefore, the same cannot be said to be discriminatory

in any manner as the similar pay scale is given to the other post as well. However, it is seen that while making the rules for revision of pay after

accepting the recommendations of the Pay Commission, in the year 1990 the Schedules are appended to the Rules called M.P. Pay Revision Rules,

1990. In Schedule-I though the revised pay scale for the pay scale of Rs.18203300 is shown to be Rs.2000-3500/- but in Schedule II for Class II

gazetted post while stating the very same pre-revised pay scale of Rs.18203300/-, a higher revised pay scale of Rs.22004000/- is prescribed with a

condition that the same would be applicable to the post on which the recruitment is made 100% or partially by direct recruitment through the Public

Service Commission. According to the law laid-down by the Tribunal, duly approved by this Court as also by the Apex Court, such a prescription is

arbitrary. For, the source of recruitment cannot be made the basis for grant of different pay scales. Therefore, in our considered opinion, only the said

note and the condition appended to the Revision of Pay Rules, 1990 has to be declared as ultra vires and opposed to the provisions of Article 14 of the

Constitution of India. We accordingly declare so.

As a result, the petition succeeds and isallowed. The condition prescribed in the Revision of Pay Rules, 1990 as against Item No.7 of Schedule-II is

declared as ultra vires and is struck down. As a consequence, the petitioners would also be entitled to grant of the revised pay scale of Rs.2200-4000/-

and any further revised pay scale according to such revision, irrespective of the fact whether they were directly recruited or promoted on the post on

which the said revised pay scale was made applicable by the State Government.

Let the benefit accrued on account of suchentitlement be calculated and the pay be revised accordingly and arrears be paid to the petitioners within

three months from today, failing which the petitioners will be entitled to interest @12% p.a. for the delayed payment thereafter.â€​

This Court, in the light of the aforesaid, is of the opinion that Clause 3 of order dated 2/5/2014 is arbitrary, discriminatory and violative of Article 14, 16

and 21 of the of the Constitution of India. It is accordingly quashed. The petitioners to the extent of junior machine assistant is concerned, will be

entitled for a grade pay of Rs.2400/w.e.f. 01/11/2008. So far as the post of senior machine assistant is concerned, they will be entitled for grade pay

of Rs.2800/- w.e.f. 01/11/2008. There cannot be any discrimination between the identically placed employees holding the same post in the matter of

grant of grade pay.

The respondents are directed to revise pay of the petitioner in the light of the aforesaid and the petitioners shall be entitled for all other admissible

allowances viz., DA, TA, HRA and overtime, night duty allowances, incentives etc., by revising their pay keeping in view the aforesaid and the

respondents are directed to grant benefit of the same and to release the arrears within a period of 90 days from today.

With the aforesaid, the present Writ Petition stands allowed. No order as to costs.â€​

Learned counsel for the appellant has drawn our attention to Clause (x) and Clause (xi) of the Minutes of Understanding arrived at New Delhi on

27.02.2013 between Units & Corporate Office Management Team and Recognized Union Office Bearers from the Units (Annexure P/3) and

submitted that the private respondents are not the employees of the Bank Note Press, Dewas nor they were working in Bank Note Press, Dewas

prior to 10.02.2006. They were appointed by Security Printing and Minting Corporation of India Limited and are working after 2008, and therefore,

there is no discrimination nor Clause 3 of order dated 02.05.2014 is arbitrary or violative of any of the provisions of the Constitution of India. He

further submitted that the learned Writ Court, without considering the aforesaid aspect of the matter, passed the impugned order; and prayed that the

impugned order be set aside and the writ appeal be allowed.

In reply, Shri L.C. Patne, learned counsel for the private respondents has submitted that the private respondents were appointed in the year 2008

in the Security Printing and Minting Corporation of India Limited on the post of Junior Machine Assistant. He has also drawn our attention towards

the gradation list of the employees and submitted that appellant No.1 wrongly relaxed the essential qualification and directly promoted the employees

of the Bank Note Press, Dewas who were working on the post of Mazdoor and Cook since 2006 and in spite of the fact that they were not having the

requisite qualifications, promoted them to the post of Junior Machine Assistant and thereafter to the post of Senior Machine Assistant. He has also

submitted that the employees of Bank Note Press, Dewas have to work for 44 hours in a week whereas the employees, who are working in the

Security Printing and Minting Corporation of India Limited have to work for 48 hours in a week.

The private respondents were having the essential qualification for the post of Junior Machine Assistant and they cannot be discriminated with the

employees of Bank Note Press, Dewas.Considering the aforesaid facts, the learned Writ Court has rightly allowed the writ petition of the private

respondents; and he prayed for dismissal of the writ appeal.

We have heard the learned counsel for the parties and perused the record of the case.

No statutory provision of law has been brought to the notice of this Court which provides that a person who has been appointed through process of

selection is having lessor qualification. In the absence of any provision of law, Clause 3 of order dated 02.05.2014 is not only arbitrary and

discriminatory, but it has created an unreasonable classification of the employees and it being a class legislation, is violative of Articles 14, 16 and 21 of

the Constitution of India.

Learned Writ Court has rightly allowed the writ petition of the private respondents. No case to interfere with well reasoned order dated

06.10.2016 passed by the learned Writ Court in Writ Petition No.6457/2015, as prayed for, is made out.

Writ Appeal No.19/2017 and Writ Appeal No.147/2017 have no merit and are accordingly dismissed.

In the light of the aforesaid judgment, the present Writ Petition stands allowed. The judgment delivered by the Division Bench shall be applicable

mutatis mutandis in the present case also.

Learned counsel for the respondent has informed this Court that SLP is pending before the Hon'ble Supreme Court against the judgment dated

17/4/2017. It is needless to mention that the fate of the petitioner shall also be governed by any order passed by the Hon'ble Supreme Court of India in

the SLP.