Salam Indira Devi vs The State of Manipur and Another

H.K. Sema, J.—In this writ petition, the Petitioner has prayed for a writ of mandamus for a direction to the Respondents to regularise the service of the Petitioner in the post of Asstt. Public Prosecutor cum-Asstt. Govt, Advocate with retrospective effect from the date of her initial appointment in the said post on 2.3.1987 and also for a direction to pay her pay and allowances at par with the regular Asstt. Public Prosecutor on the principle of equal pay for equal work.

I have heard Mr. N. Surjamani Singh, learned Counsel for the Petitioner as well as Mr. Y. Imo Singh, learned Advocate General, Manipur.

By an order dated 2nd March, 1987 the Petitioner was appointed as Assistant Public Prosecutor cum-Assistant Government Advocate, Manipur on payment of Rs. 40/- for work occupying full 4 (four) hours or more in a day and Rs. 20/- for work occupying less than 4 (four) hours or for adjournment in any date before any Court in Manipur until further orders w.e.f. the date of joining in the public interest. By Anr. order dated 31st December, 1987 (Annexure-A/2) the services of the Petitioner was ordered to be attached to the Office of the Public Prosecutor (High Court) to assist all the Public Prosecutors on payment of Rs. 40/- per day. Petitioner has been working till today at the rate of Rs. 40/- per day. The grievance of the Petitioner is that one incumbent, namely, Miss R.K. Pratima Devi who has been appointed by an order dated 17.64989 (Annexure - A/3) has been given regular appointment with the regular scale of pay whereas the Petitioner has been allowed to work on payment of Rs. 40/- per day since 31.12.1987 till today. It is also the case of the Petitioner that the nature of work performed by Miss R.K. Pratima Devi and the nature of work performed by the Petitioner is the same and as such on the principle of equal pay for equal work, the Petitioner is also entitled to get regular pay scale as in the case of Miss R.K. Pratima Devi. Having refused to pay the Petitioner a regular scale of pay is therefore, discriminatory inasmuch as the case of the Petitioner and Miss. R.K. Pratima Devi is equally circumstanced. It is submitted by Mr. N. Surjamani Singh that unequal treatment has been meted out to the Petitioner by the Respondents in equal circumstances.

Respondents have filed counter. The case of the Respondents is that the Petitioner was never appointed to a sanctioned post having time scale of pay and as such she is not entitled to get regular time scale of pay. It is the further case of the Respondents that she was not appointed against a sanctioned post, regularisation of her service in the said post cannot be made. It is also the case of the Respondents that the Government has not decided any policy decision for regular appointment of Assistant P.P. engaged on payment of appearance fees per day in the Court.

With regard to the payment of regular scale of pay to the Petitioner on the principle of equal pay for equal work, by now it is well settled principle of law that if the incumbent performs similar functions and carry out similar work, they arc entitled to get equal pay for equal work. It is not disputed that the Petitioner and one Miss Pratima Devi perform similar duties and responsibilities. In point of fact, the Petitioner having been attached to Assistant Public Prosecutor in the High Court, performs higher responsibilities than the one namely Miss. R.K. Pratima Devi. From the appointment order dated 17.6.1989 (Annexure-A/3), it clearly appears that Miss R.K. Pratima Devi has been appointed with regular scale of pay whereas the Petitioner has been engaged on payment of daily fees of Rs. 40/-. Therefore, denial of regular pay scale to the Petitioner is arbitrary and discriminatory inasmuch as the Petitioner and Miss R.K. Pratima Devi has been performing similar type of work and responsibilities. Besides being discriminatory, it is unthinkable that a person would render legal service to the State at the rate of Rs. 40/- per day at this juncture when the prices of essential commodities are soaring up day by day, almost beyond the reach of the common people, Mr. Y. Imo Singh submits that Miss R.K. Pratima Devi has been appointed on the recommendation of the D.P.C. and whereas the Petitioner has been engaged on payment of daily basis and as such the Petitioner is not entitled regular pay scale as in the case of Miss R.K. Pratima Devi. I am unable to accept this submission of the learned Advocate General for more than one reasons. Firstly, once it is held that the Petitioner and Miss R.K. Pratima Devi perform similar duties and responsibilities they must be paid on the principle of equal pay for equal work 2ndly, the principle of equal pay for equal work is not applicable on the basis of appointment order, it has been made applicable on the basis of work they are performing. That the Petitioner and Miss R.K. Pratima Devi perform similar duties and responsibilities has not been disputed by the Respondents. If that be the case, there is no reason to deny the equal pay for equal work to the Petitioner. In this view, this petition succeeds on this point and Respondents are directed to pay the pay and allowances to the Petitioner with regular scale of pay as in the case of Miss R.K. Pratima Devi w.e.f. January, 1995.

With regard to the regularisation of the Petitioner''s service, it appears from the order of appointment dated 2.3.1987 (Annexure - A/1) the appointment has not been made against a regular post. Regularisation of a post is always made against the existing vacancy. In this view, it may be difficult to direct the Respondents to regularise the service of the Petitioner in the post held by her at this stage. At the same time the fact that the Petitioner continues in the post since 2nd March, 1987, it is now more than 7 years, would clearly show that there is a need for the service and consequently for the post. At this stage, the Petitioner cannot be thrown out of the service after putting more than 7 years unless compelling circumstances are made out against the Petitioner. The Respondents are accordingly directed to create a post of Assistant Public Prosecutor cum-Asstt. Govt Advocate attach to the Office of the Public Prosecutor in the High Court within a period of 6 (six) months from today. On creation of such post, the Respondents shall consider the case of the Petitioner for regularisation in terms of directions indicated above. This direction is, however, subject to the observation made in paragraph 9 of this judgment. Till the scheme is formulated and or post is created and the case of the Petitioner is considered for regularisation, the service of the Petitioner shall not be ousted.

At the time or hearing of this writ petition, it is submitted by the learned Advocate General, Manipur that the system of engagement of Government Advocate in the High Court is different from the practice in vogue in other States. In the State of Manipur, Government Advocates are appointed on regular basis with regular scale of pay and they are being treated as employee of the Government. They are made to retire on superannuation on attaining the age of 58 years. In other neighbouring States, the Government Advocates are retained on retainer basis with no age limit prescribed, subject to physical fitness.

Legal service is not service in the sense of employment. In legal service experience is an indispensable factor. With growing age a man gets more and more matured in legal field and gains more experience. A good counsel is not only has to be equipped with law points but he has to deal with intricacies of varieties of cases and a matured mind is necessary and for that age has a greater role to play. In legal profession a man acquires experience after considerable number of years of practice. It is therefore advisable that as far as practicable the service of experienced hand should be utilised as counsel representing the State subject to their physical fitness. It is more necessary in the case of Government Advocates, because 90% of litigation are against the State. Therefore, State must be represented by an effective and experienced hand.

The Respondents are, therefore, directed to formulate a scheme within a period of 6(six) months from today in terms of the observation made above. In any case even if the Government decided to retain the present practice, the retirement age of the Govt. Advocate in the High Court should be raised from 58 to 60 years. The service of Government Advocates in the High Court cannot be made at par with the other services, because the nature of duties performed by the Government Advocates is entirely different from the nature of duties performed by oilier services.

With the aforesaid directions and observations, this petition is partly allowed. No costs.