State of West Bengal vs Bikash Sengupta

Satyabrata Sinha, J.—Both these appeals involving similar questions of fact and law were taken up for hearing together and are being disposed of by this common judgment.

These writ applications arise out of an order dated March 24, 1998 passed by the West Bengal State Administrative Tribunal in case No. T.A. 122 of 1996, whereby and whereunder the writ applications filed by the Respondents herein were allowed holding:

It has been submitted by the learned Advocate for the applicants and the learned Advocate for the added Respondents that when a section of officers recruited through the same examination by the P.S.C. West Bengal have been given the benefits of scale Nos. 17, 18 and 19 in the proportion of the ratio of 6:3:1 then there will be discrimination when another section of officers recruited through the same examination in the same group are not given the same benefit though they belong to a different service. it appears that there is a pronouncement of a competent writ court on the point as referred to above. Nothing has been placed before this forum to show that the order passed in the civil order mentioned above is no longer standing. In the circumstances, we think that it will be fit and proper to accept the contention of the Learned Advocate for the applicant as also the Learned Advocate for the added Respondents. Accordingly, we hold that the application should be allowed and the reliefs as prayed for should be granted to the applicants and the added Respondents.

The Petitioners are working as Group-A Officers of the State of West Bengal in the West Bengal Labour Services, Co-operative Services, Agricultural income tax Services and Employment Services. They were appointed together with members of Civil Services (Executives) through Public Service Commission. Admittedly the ratio for drawing up the pay in scales 17, 18 and 19 for the Civil Services (Executive) had been formulated as 6:3:1. The Petitioners contend that members of other services including Civil Servies (Judicial) filed writ applications before this Court and the same having been allowed, the State implemented the same by issuing relevant Notifications fixing the percentage as 6:3:1 for the purpose of grant of scales 16, 17 and 18 respectively with effect from April 1, 1981. Despite the same, the said benefit had not been granted to the Petitioners although a promotion policy prescribing a guidelines in that regard had been formulated by the Finance Department in terms of memo No. 5916(62)-F dated August 5, 1981.

Mr. Kar, the learned Counsel appearing on behalf of the Petitioners submitted that it is wrong to contend that the case of the Petitioners is covered by the statement on promotion policy issued by the Finance Department on August 5, 1981. Our attention has been drawn to the said promotion policy, the relegant clauses whereof are as follows:

Taking into account the views expressed by the pay Commission, the State Government has now formulated certain decisions regarding promotion of employees; those are being set forth below. On a number of issues further details will be worked out by the individual Departments after consulation with the Finance Department and representatives of employees'' associations. It is the intention of the government to review the promotion policy after three years so that problems, if any, encountered in the implementation may be satisfactorily resolved.

In the case of State Services, including the State Civil Service, State Health Service and the State Engineering Service, the number of posts currently available in scales 18 and 19 are being increased with effect from April 1, 1981; these posts will be filled through promotion, on the basis of merit-cum-seniority, from within the respective Service and departmental cadres, The rearrangement of posts within each cadre is listed in the annexure.

Admittedly, on April 1, 1981 a policy decision was laid down fixing the ratio for placing the concerned employees in scales 17, 18 and 19 in the following manner.

Name of the Service Total No. of Post Posts in Scale No. 17 Posts in Scale No. 18 Posts in Scale No. 19 Ratio

Civil Service (Executive) 1767 1050 550 167 6:3:1

Employment Service 170 150 17 3 8.8:1:0.2

Labour Service 132 100 27 5 1.6:2.0:0.4

Co-operative Service 162 138 19 5 8.7:1:0.3

Agricultural Income Tax Service 41 34 6 1 3.3:1.5:0.2

A change was effected in the said policy decision with effect from August 1,1984 in the following manner:

Name of the Service Total No. of Post Posts in Scale No. 17 Posts in Scale No. 18 Posts in Scale No. 19 Ratio

Civil Service (Executive) 1767 1050 550 167 6:3:1

Employment Service 170 139 28 3 8:1:1.7:0.2

Labour Service 132 95 32 5 1.2:2.4:0.4

Co-operative Service 162 126 31 5 7.8:1.9:0.3

Agricultural Income Tax Service 41 30 10 1 7.4:2.4:0.2

The Respondents claim as noticed hereinbefore is that with a view to being about parity and equality in the distribution of scales Nos. 17, 18 and 19, they are also entitled to fixation of the ratio as 6:3:1 which demand of theirs had been negatived by the State. The Respondents contend that had their claim been allowed, the position would have been as under:

Name of the Service Scale No. 17 Scale No. 18 Scale No. 19 Ratio

Employment Service 102 51 17 6:3:1

Labour Service 79 40 13 6:3:1

Co-operative Service 97 49 16 6:3:1

Agricultural Income Tax Service 25 12 4 6:3:1

Mr. Kar, in support of his submission that the Learned Tribunal or this Court had no power to create more posts, has relied upon Life Insurance Corporation of Life Insurance Corporation of India Vs. Mrs. Asha Ramachandra Ambekar and another, and an unreported Division Bench Division of this Court in State of West Bengal v. West Bengal District Intelligence Branch Ministerial Officers Association disposed of on March 2, 2000. It has been contended that the decisions to the contrary rendered by the learned Single Bench of this Court is impliedly overruled by the said Division Bench decision and in that view of the matter the impugned judgment of the learned Tribunal wherein the decision was rendered following the aforementioned Single Bench decision, cannot be sustained.

Mr. K.K. Moitra, Learned Senior Counsel appearing on behalf of the Respondent''s on the other hand, submitted that having regard to the fact that the State is a model employer, it can neither adopt a policy decision which is not bona fide and/or has adverse public effect, and inter alia in such cases the court can in exercise of its judicial discretion, interfere therewith.

Strong reliance in this connection has been placed on K. Rajendran and Others Vs. State of Tamil Nadu and Others, and AIR 1952 S.C. 16. According to the learned Counsel, for the purpose of finding out as to whether any arbitrariness has been committed or not, the court can lift the veil and find out the truth and substance behind the same. According to the learned Counsel, having regard to the fact that the Petitioners as also the members of the Civil Services (Executive) were appointed by one examination having the same qualification and their duties and functions being also the same, they could not have been discriminated against only because they were posted in different departments. According to the learned Counsel, the extra benefit granted to the favoured few, is based on mini classification and micro distinction. Reference in '' this connection has been made to The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, . The learned Counsel submitted that classification must have a nexus with the subject matter and in a case where such classification is inclusive, the burden of proof being on the State, the Court may interfere in the matter if it is found that the State has failed to discharge its burden. Reliance in this connection has been placed on B. Prabhakar and Anr. (1985) Supp. S.C.C. 432.

Referring to Rule 54(b) of the West Bengal Service Rules Part-I by way of example, the learned Counsel pointed out that as all the concerned employees may.be promoted upto the cadre of Indian Administrative Service, the chances of promotion to the employees of one class of serive should not be denied by granting a higher chance of Promotion to another class of service. Reliance in this connection has also been placed on Roop Chand Adlakha and Others Vs. Delhi Development Authority and Others, and The Municipal Corporation of Greater Bombay Vs. M/s. New Standard Engineering Co. Ltd., and Babita Prasad and Others Vs. State of Bihar and Others, . According to the learned Counsel, the decisions of the learned Single Judge of this Court constitute binding precedents and the same are binding on the State. Reliance in this connection has been placed on S.I. Rajagopal v. Lieutenant Governor AIR 2000 S.C.W. 19.

Having regard to the rival contentions'' as noticed hereinbefore, the questions which arises for consideration in this writ application are:

(i) Whether the Court or the Tribunal has any jurisdiction to direct creation of more posts against the State?

(ii) Whether the court or the Tribunal would be entitled to direct grant of a higher scale of pay to a higher number of employees ignoring the policy decision of the State?

(iii) Whether having regard to the fact that this Court in respect of certain other categories of employees had granted such relief and the State having accepted the same, a discrimination with regard to the implementation of the judicial order has been committed ?

The Respondents in their application before the learned Tribunal prayed for the following reliefs:

(a) A writ in the nature of Mandamus Commanding the Respondents to forthwith grant the Petitioners the entitlement of scale Nos. 17, 18 and 19 in the ratio of 6:3:1, with effect from 1.4.1981, on the same footing as has been done in the case of members of the West Bengal Civil Services (Executive);

(b) A writ in the nature of Mandamus commanding the Respondents to refrain from denial of the entitlement of the scale Nos. 17, 18 and 19 to the Petitioners in the ratio of 6:3:1, at present scale Nos. 17, 18 and 19 with effect from 1.1.1990, at par with the Members of the West Bengal Civil Services (Executive) and other reliefs.

The Respondents in their rejoinder before the learned Tribunal, inter alia, stated:

With reference to the statements made in paragraphs 9 to 16 of the said petition I say that the cadre strength of W.B.C.S. (Ex.) are about 1767, the only channel of promotion being I.A.A. Against this large cadre, there are only 58 promotion posts, the ratio works out to less than 3 1/2% promotion comes when they come at all near the close of the career of an officer. Unless their promotion prospects are enhanced, there is no possibility of higher promotion. Although in terms of I.A.S. (Appointment by Promotion) Regulation, 1955 an officer of State Civil Services attains eligibility for promotion on completion of 8 years service, it now takes 27/28 years of service for a member of W.B.C.S. (Ex.) to get promotion. As officers of the W.B.C.S. (Ex.) cadre have varied and multifunctional experience of work in the field of Co-ordination of field level activities, contact with members of other services and interaction with them, and management of situation involving crisis. They play an important role in the administration as a whole and, therefore, all possible measures are required to be taken to reduce the time lag between the eligibility and actuality of promotion of members of the W.B.C.S. (Ex.). The attention of the Government has been drawn by various high level bodies, like P.S.C. and the Pay Commission to the deteriorating that the said service deserves better prospects in consideration of the role which it is called upon to play in the Administration, who find it urgently necessary to life the officers of the W.B.C.S. (Ex.) cadre from their present state of depression on-account of dalay of more than 25 years in getting promotion to I.A.S. The third Pay Commission recommends inter alia a periodic cadre review to improve the promotion prospects of the service and thereby restores its preference to the persons of high calibre opting for generaliists job, to reverse the present trend of their preference for other State Services to which recruitment is made by competitive examination for State Civil Services Group ''A'' conducted by the West Bengal Public Service Commission.

To which the Respondents replied in the following terms:

With reference to paragraph 10 of the said affidavit I say that the Respondents have wilfully and mischievously suppressed the material fact about the promotional opportunities of the members of the WBCS (Ex.). In practice the members of the WBCS (Exe.) enjoy promotional facilities by way of their in-service elevation to the posts of sub-Divisional Officer, Addl. District Magistrate in the District, Directors and other equivalent posts in several Directorates and to the posts of Assistant Secretary, Dy. Secretary and Joint Secretary of the State Secretariat. Besides, the members of WBCS (Exe.) also avail themselves of promotional benefits by way of holding the posts of Managing Director, Chief Executive Officer, Administrators etc. of various undertakings and autonomous bodies. The statement of the deponent in this paragraph perpetrating a complete black-out of all this material information to this Hon''ble Court about the promotional prospects of the members of WBCS (Exe.) as made clear in this paragraph brings over ground the ulterior motive of Respondents in the matter of continuing to meet out discrimination and injustice to the Petitioners by way of forcing upon the Petitioners a wrongful loss of cumulative and ever-increasing magnitude.

It is not in dispute that officers of the concerned services belong to Group-A in terms of West Bengal Civil Services (Executive) examination as it appears from information to candidates given by West Bengal Civil. Service Etc. Examination, 1990, issued by the Public Service Commission of West Bengal. For selection of the candidates, a combined competitive examination was treated as comprising four separate and distinct examination for four categories of services and posts as detailed at item No. 2 thereof; one of the categories of services being Group-A. In terms of paragraph 2, of the said brochure the said category consists of the following services:

(a) West Bengal Civil Service (Executive): Scale of pay Rs. 660-40-1100-50-1600;

(b) West Bengal Commercial Tax Services: Scale of pay Rs. 660-40-1100-50-1600;

(c) West Bengal Agricultural Income Tax Service: Scale of pay Rs. 660-40-1100-50-1600;

(d) West Bengal Excise Service: Scale of pay Rs. 660-40-1100-50-1600;

(e) Assistant Registrar of Co-operative Societies: Scale of pay Rs. 660-40-1100-50-1600;

(f) West Bengal Labour Service: Scale of pay Rs. 660-40-1100-50-1600;

(g) West Bengal Food and Sipplies Service: Scale of pay Rs. 660-40-1100-50-1600;

(h) West Bengal Employment Service (Except the post of Employment Officer (Technical): Scale of pay Rs. 660-40-1100-50-1600

The recruitment of each of the categories mentioned in Group-A aforementioned is, however, based on the result of the said examination, and it cannot, therefore, be said that all other services are comparable to West Bengal Civil Services (Executive) in status, importance and public duties assigned. It is one thing to contend that all the candidates were to appear at the same examination and had the same minimum qualification, but having regard to the mode of recruitments made in different service, we are of the opinion that it cannot be said that officers of all the categories of services perform same and similar nature of duties. It is not in dispute that the services rendered by each category of employees are different. The learned Tribunal has not held that the duties and functions of the Respondents are, the same as those of the offices in West Bengal Civil Service (Executive).

It is now a well settled principle of law that no employee has any fundamental right of promotion or any fundamental right of seniority. In Director, Lift Irrigation Corporation Ltd. and Others Vs. Pravat Kiran Mohanty and Others, the Apex Court held:

The writ Petitioner holds only diploma in Electrical Engineering. Shri Bidura Dharan Mohapatra and Shri Parijat Ray hold double diploma of Mechanical and Electrical Engineering. It is settled law that the government or the corporation, due to administrative exigencies, is entitled to and has power to reorganise the existing cadres or amalgamate some of carve out separate cadres. The pre-existing three separate cadres, namely, Electrical-Mechanical were sought to be amalgamated into two cadres by absorbing the personnel working in the composite cadre, namely, Electrical-Mechanical in either Electrical cadre or Mechanical cadre. Options have been called for in that regard from all the persons working in the Electrical-Mechanical cadre and the Appellants exercised their options for absorption in Electrical cadre. The employees working in the Electrical and Mechanical cadres were also aware of the same. It was therefore, open to the Respondent to raise any objection to the policy at that stage. But he failed to do so. The decision to amalgamate the existing cadres by reorganising into two cadres was a policy decision taken on administrative exigencies. The policy decision is not open to judicial review unless it is mala fide, arbitrary or bereft of any discernible principle on account of the amalgamation and adjusting the composite Electrical-Mechanical cadre in either of the Electrical or Mechanical cadre as per the options, given the order of seniority of the employees working in Electrical or Mechanical cadres is likely to be reviewed. When the persons in the composite Electrical-Mechanical cadre opted to the Electrical cadre. They are entitled to be considered for their fitment to the cadre as per the seniority from the date of their initial appointment vis-a-vis their scale of pay. This was the procedure adopted by the corporation in fixing the inter seniority. The procedure adopted is just, fair and reasonable and beneficial to all the employees without affecting their scales of pay or losing the seniority from the date of initial appointment. Undoubtedly, in this process the Respondent/writ Petitioner lost some place in seniority which is consequential to amalgamation. He has not been deprived of his right to be considered for promotion, only his chances of promotion have receded. It was not the case of the Respondent that the action was actuated by mala fide or colourable exercise of power. There is no fundamental right to promotion, but an employee has only right to be considered for promotion, when it arises, in accordance with the relevant rules. From this perspective in our view the conclusion of the High Court that the gradation list prepared by the corporation is in violation of the right of the Respondent/writ Petitioner to equality enshrined under Article 14 read with Article 16 of the Constitution, and the Respondent/writ Petitioner was unjustly denied of the same is obviously unjustified.

See also Ajit Singh and Others Vs. The State of Punjab and Others, .

In Life Insurance Corporation of India v. Asha Ramchhandra Ambekar (Mrs) and Ors. (Supra) the Apex Court held:

Further it is well-settled in law that no mandamus will be issued directing to do a thing forbidden by law. In Brij Mohan Parihar v. M.P.S.R.T. Corpn. it is stated as under:

The provisions of the Motor Vehicles Act and in particular Sections 42 and 59 clearly debar ail holders of permits including the State Road Transport Corporation from indulging in unauthorised trafficking in permits. Therefore the agreement entered into by the Petitioner, unemployed graduate, with the State Road Transport Corporation to ply his bus as nominee of the Corporation for a period of five years, was clearly contrary to the Act and cannot, therefore, be enforced. In the circumstances, the Petitioner would not be entitled to the issue of a writ in the nature of mandamus to the Corporation to allow him to operate his motor vehicle as a stage carriage under the permit obtained by the Corporation as its nominee.

Thus, apart from the direction as appointment on compassionate grounds being against statutory provisions, such, direction does not take note of this fact. Whatever it may be, the Court should not have directed the appointment on compassionate ground the jurisdiction under mandamus cannot be exercised in that fashion. It should have merely directed consideration of the claim of the second Respondent. To straight away direct the appointment would only put the Appellant Corporation in piquant situation. The disobedience of this direction will entail con-tempt notwithstanding the fact that the appointment may not be warranted. This is yet another ground which renders the impugned judgment dated October 19, 1993, unsupportable for these reasons, the Civil appeal will stand allowed. There, shall be no order as to costs.

The said decision has been followed by the Apex Court in State of Haryana and Others Vs. Rani Devi and Another, .

A division Bench of the Court, of which one of us was. a Member, in State of West Bengal v. West Bengal District Intelligence Branches Ministerial Officers Association, inter alia, referring to the decisions of the Apex Court in K. Jagadeesan Vs. Union of India and others, , (sic)ech. Executive (Antipollution) Welfare Association v. (sic) Tech. Executive (Anti Pollution) Welfare Association Vs. Commissioner of Transport Dept. and another, , (sic) Swapan Kumar Choudhary and others Vs. Tapas Chakravorty and others, , Council of Scientific ad Industrial Research v. (sic). Council of Scientific and Industrial Research and Another Vs. K.G.S. Bhatt and Another, and Union of India and others Vs. S.L. Dutta and another, , held that the court cannot issue a writ in the nature of mandamus directing the Respondents to create more posts. It has further been held that the court shall not interefere with a policy decision.

It may be true, as has been submitted by Mr. Moitra, that a policy decision can also be subject matter of judicial review, provided it is found to be arbitrary(sic) discriminatory or wholly unreasonable or unfair. But as(sic) regards the merit of the policy decision, the High Court in exercise of its power of judicial review, can interfere(sic) only on a limited sphere. Power of judicial review, as is(sic) well known, is exercised not to interfere with the merit(sic) of the decision, but for considering as to whether the(sic) decision making process suffers from any illegality(sic) irrationality or procedural impropriety. on the part of the(sic) State. It is true that miniclassification or micro(sic) distinction may not be permissible, as has been held by(sic) the Apex Court in Khosa but can it be said to be a case where the impugned decision has been entered into(sic) malafide or in an. arbitrary manner? The State, as(sic) indicated hereinbefore, has sought to justify its stand(sic) before the Tribunal. The learned Tribunal has sightly no(sic) considered the merit or otherwise of the said polic(sic) decision.

In K. Rajendran and Others Vs. State of Tamil Nadu and Others, the Apex Court interfered with the policy decision of the State, whereby and whereunder the post(sic) were sought to be abolished on the ground that the same had not been done bona fide. Such is not the case(sic) here.

Keeping in view the fact that the Petitioners has not been recruited in the West Bengal Civil Service (Executive) having regard to the marks obtained by them in the examination, recommendations for their appointment to different categories of services can be made by the Public Service Commission on the basis of the performance of the candidates concerned. Such recommendations for recruitment in different categories of services being based on national criteria, can neither (sic)e said to be arbitrary or irrational, necessary corollary whereof, would be that the Respondents cannot be said (sic)o be forming the same class with those who had been (sic)ecruited in West Bengal Civil Service (Executive).

In this view of the matter, we are of the opinion that it is not a case where the State has made any mini classification or micro distinction. It is true that in a given case if the discrimination is patent the burden lies upon the State to justify the same, but such a case has not been made out herein.

In a case of this nature even if a wrong grant to come of the employees had been made the said benefit would not lead to a discrimination unless it is held that the Petitioners also have an enforceable right. See State of Haryana and Others Vs. Ram Kumar Mann, .

In Union of India v. No. 664950 I.M. Havildar/Clerk Union of India (UOI) and Others Vs. No. 664950 IM Havildar/Clerk SC Bagari, the Apex Court held that equality of Opportunity in employment means equality within a class and not between different classes. See State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, .

In Union of India and Ors. v. Anil Kumar 2000(2) S.L.J. 129 the Apex Court has laid down the principles of equation of posts in the following terms:

The Court in State of Maharashtra and another Vs. Chandrakant Anant Kulkarni and others, , enunciated the principles which are required to be kept in mind while considering the question of equation of posts allotted to the service. It was reiterated in S.P. Shivprasad Pipal Vs. Union of India and Others, , that the principles formulated in the matter of equation of posts were:

(1) Where there were regularly constituted similar cadres in the different integrating Units the cadres will ordinarily be integrated on that basis but (2) where there were no such similar cadres, the following factors will be taken into consideration in determining the question of posts:

(a) Nature and duties of a post;

(b) Powers exercised by the officers holding a post, the extent of territorial or other charge held or responsibilities discharged;

(c) The minimum qualification, if any, prescribed for recruitment to the post and;

(d) The salary of the post.

The instant case does not satisfy the said requirements.

The matter relating to fixation of scale of pay or what scale ah employee is to be placed is primarily a matter which falls either in the realm of legislature or the Executive. The jurisdiction of this Court in such matter is limited. In Union of India v. Bhola Samanta 2000 (1) S.L.R. 807 it was held:

It is now a trite law that the court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot fix any scale of pay or the quantum of allowance payable to an employee particularly when the same had been considered by an expert committee. In these appeals, the cases of the Appellants stand on a higher pedestal as the scale of pay of the writ Petitioners has been fixed under statutory rules.

The Apex Court in Union of India (UOI) and Another Vs. P.V. Hariharan and Another, , observed:

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 picute before it, is the proper authority to decide upon this issue. Very often the doctrine of ''equal pay for equal work'' is also being misunderstood and misapplied, freely revising and enhancing the pay scales across the board. We hope and trust that the Tribunals will exercise due restraint in the matter. Unless a clear case of hostile discrimination is made out, there would be no justification for interfering with the fixation of pay scales. We have come across orders 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.

Recently a Special Bench of Five Judges of this Court in Baidyanath Mukherjee v. Vivekahanda Goswami and Ors. (A.P.O No. 601 of 1987 and other analogous cases disposed of on 6.10.99) while considering the question of scale of pay of the officers working on the Original Side vis-a-vis the Appellate Side of this Court held:

The answer to the question depends upon several factors. It does not depend upon either the nature of work or volume of work done by Bench Secretaries. Primarily it requires among others, 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 equivalent unless it is shown that it was made with extraneous consideration. The learned Counsel for the Appellants also referred to AIR 1989 29 (SC) , wherein it had been observed by Supreme Court that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the court to determine by relying the averments in the affidavits in the interest of parties. In Supreme Court Employees Welfare Association case (Supra) in paragraph 42 of the reported decision M.M. Dutt, J., observed ''It is really the business of the Government or the management to fix the pay scales after considering various other matters and the Court can only consider whether such fixation of pay-scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in fact.

See State of U.P. and others Vs. Ramashyraya Yadav and another, and State of West Bengal and Others Vs. Madan Mohan Sen and Others, .

The question as to how many posts should be created and/or how many employees should be promoted to particular scales of pay, depends upon various factors. The State, having regard to the nature of employment, the number of employees involved and all other relevent considerations, fixed the ratio of employees for promotion to higher grade not only on April 1, 1981, but also on August 1, 1984. The writ application filed by the West Bengal Judicial Services Association, on the basis whereof the impugned order has been passed, was filed in the year 1988, whereas the Petitioners approached the learned Tribunal in 1996.

It may be that the State has not only given effect to the judgment of this Court dated October 31, 1988, passed in C.R. No. 396 (W) of 1988 in the aforementioned writ application, but also some other orders. It is true that normally the Court, having regard to the equality clause enshrined in Article 14 of the Constitution, may direct the State to confer the same benefit to the persons who are similarly situated. But before such a direction can be issued, the question which necessarily has to be posed and answered is whether the Petitioners are similarly situated to those other persons and/or was otherwise entitled in law to have the same benefit. No such finding has been arrived at by the learned Tribunal. On the other hand, as noticed hereinbefore a Division Bench of this Court, relying upon various Supreme Court decisions, has clearly held that merit of the policy decision should not be interfered by the High Court while exercising a power of judicial review, nor a writ of mandamus should be issued for creation of posts. The said Division Bench decision is binding on this Court particularly in view of the fact that the self-same controversy arose before it.

The decision of Mukherjee, J. In C.R. No. 396(W) of 1988 cannot be said to be a precedent. It had a binding effect only on the parties thereto in relation to the subject matter of the dispute which fell for consideration before the learned Judge.

In any event, having regard to the fact that a Division Bench of this Court has arrived at a different conclusion as above having regard to the rule of precedent we must follow the division Bench decision in preference to the decision of the learned single Judge in view of the decision in the case of S.I. Rajagopal v. Lieutenant Governor (Supra).

The method of recruitment is not the term of service. The only relevant consideration for issuance of a writ of mandamus would be whether a class of persons similarly situated is being differently treated or not. If the answer is In. the affirmative the court has the requisite jurisdiction and duty to do justice to the parties but to treat unequals as equals would not subserve such rules. In this view of the matter we cannot uphold the order of the learned Tribunal.

However, it has been placed before us that the matter has now been examined by the Administrative Reforms committee as also by the Pay Committee. If this be so we direct the State to formulate an appropriate policy decision having regard to the recommendations of the Expert Bodies. Their recommendations may not be binding upon the State, but the same certainly carry a great weight and only on cogent grounds the State can refuse to implement the same.

For the reasons aforementioned we are of the opinion that although the judgment and order of the learned Tribunal cannot be sustained, but the State should be directed to consider the reports of the Expert Bodies including the Administrative Reforms Committee and consider the entire matter afresh in the light of such recommendations. Such considerations may be made at an early date and preferably within a period of 4 months from the date of the communication of this order.

The writ application is, thus, disposed of with the aforementioned direction but without any order as to costs.

Hrishikesh Banerji, J.

I agree.

Writ application disposed of.