State of West Bengal vs Pradip Kumar Ganguly

Satyabrata Sinha, J.—This appeal arises out of a judgment and order passed by a learned Single Judge of this Court dated December 19, T994 in Civil Order No. 8710 (W) of 1994, whereby and where under the said learned Court allowed the writ application filed by the Petitioners as regards their claims to be treated as teachers as also equal pay with technical assistants.

The fact of the matter lies in a very narrow compass.

The Petitioner No. 1 is an analyst, whereas other Petitioners are Laboratory Assistants. Admittedly, the technical assistants in terms of a Government Order dated February 13, 1984 had been given status of a ''teacher''. Educational qualifications of Laboratory Assistants/Analyst is B.Sc. preferably with Honours having any teaching and practical experience ; whereas in case of technical assistants, the essential qualifications is diploma in connected branch of study and three years experience in any industries or institutions. The respective functions of the aforementioned two categories of employees are given herein below:

Laboratory Assistants/Analyst

Technical Assistants

a)

Educational Qualification:

* * ** * * ****

b)

Function:

i)

Takes up classes of practical (Physics, Chemistry and Engineering) classes as provided in the Routine.

i) Cannot take classes ot physics and chemistry. But guides and assist the students in workshop in (Technical) matters only-

ii)

Can be teacher represent Routine

The contention put forth before the learned Trial Court appears to be that from the very beginning the Laboratory Assistants, Technical Assistants, Mistry Instructor, and Supervisor Instructor were granted status of a teacher, but later on the State Government deviated from the said order. Further case of the writ-Petitioners-Respondents appears to be that they have been performing Jobs of teacher and in fact they were appointed as examiner for some time. Before the learned Trial Judge no affidavit-in-opposition was filed nor the State was represented. The learned Trial Judge on the basis of the materials placed on records and relying on a decision of the learned Single Judge of this Court in Santi Ranjan Santra and Ors. v. Principal, Bengal Engineering Collect and Ors. ( 1986 (CW) 2869 as also a decision of the Supreme Court of India passed in Civil Appeal No. 2530 of 1993 (State of West Bengal v. Harendra Nath Bhowmick and Ors.) disposed of on July 26, 1994, directed the Respondents to confer the status of the teacher wh''o are Laboratory Assistants or analyst in the aforementioned College as also grant them pay scale of Technical Assistants.

Mr. Chatterjee, Learned Counsel appearing on behalf of the Appellants has principally raised two contentions in support of this appeal. The Learned Counsel submits that had an opportunity been given to the Appellants, they could have placed many materials to show that the Petitioners and the Technical Assistants do not stand on a same footing and thus doctrine of equal pay for equal work has absolutely no application in this Case. The Learned Counsel contends that the matter having been recommended by the concerned authorities was placed before the Pay Revision Committee and the said Committee which consisted of an expert body, upon consideration of all relevant materials, refused to confer the status of teachers upon the Petitioners and grant them equal scale of pay with that of Technical Assistants. In support of his aforementioned contentions reliance has been placed on State of West Bengal and others Vs. Deb Kumar Mukherjee and others, , State of Rajasthan Vs. Gopi Kishan Sen, K. Narayanan and Ors. v. State of Karnataka and Ors. 1994 S.C.C. (L.&S.) 392, Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors.1988 S.C.C. (L. &S.) 673 and Griha Kalyan Kendra v. Union of India and Ors.1991 S.C.C. (L.&S.) 621.

Mr. K.K. Maitra, learned Senior Counsel appearing on behalf of the writ Petitioner-Respondents on the other hand submitted that the State Government having been served with notice and having been given opportunity to file affidavit-in-opposition and having failed to so, cannot be permitted to raise additional question and/or relying on additional evidence before this Court. The Learned Counsel submits that although the Technical Assistants were earlier designated as teachers, the same had been withdrawn by a notification issued as far back as on January 7, 1969. According to the Learned Counsel only on February 13, 1984 such a status having been given and as would appear from other documents placed on records, it would appear that similar status had been given to the other no technical cadre, there does not exist any rational basis for depriving the Petitioners from being conferred, with the status of a teacher. Strong reliance in this connection has been placed by The State of Jammu and Kashmir Vs. Shri Triloki Nath Khosa and Others, Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, and B. Prabhakar Rao and Others Vs. State of Andhra Pradesh and Others, . My attention has further been drawn to the unreported judgment of this Court as also of the Hon''ble Supreme Court of India which as noticed hereinbefore had been relied upon by the learned Trial Judge in the impugned judgment.

There cannot be any doubt or dispute whatsoever that in terms of Article 39(d) of the Constitution of India read with Article 14 thereof, the doctrine of equal pay for equal work envisages grant of the same salary to the person similarly situated. The core question which, therefore, must be posed and answered is as to whether the parties are equally placed so as to invoke the doctrine of equity before the law and equal protection of law as enshrined under Article 14 of the Constitution of India. The question as to whether parties posted in different grades perform absolutely same or similar nature of duties is not and cannot be an abstract question of law. it depends upon the facts and circumstances of each case. Difference in experience, responsibility and similar other factors make parties dissimilarly situated and thus doctrine of equal pay for equal work will not be applicable in their cases. It has been stated before this Court that owing to maladministration on the part of the authorities of the Bengal Engineering College, Laboratory Assistants were also permitted to take classes ; but the question which was required to be posed and answered was: (1) whether they were entitled to do so; and (2) whether by reason of such performance of duties they per se became entitled to be conferred the status of a teacher and became entitled to equal salary to that of Technical Assistants or not. Mr. Maitra has made in great endeavors before this Court to show that the responsibility and duties of the Petitioners are higher than those of the technical assistants; whereas Mr. Chatterjee pointed out that their essential! qualifications for appointment are different and the nature of job is also different. It is, therefore, clear that both the parties proceed on the basis that the essential qualifications, nature of job as also the other factors giving rise to disparity of scale of pay are not same in the case of technical assistants vis-a-vis Analyst/Laboratory Assistants. In this view of the matter, can it be said that the Petitioners and the technical assistants stand on the same footing ? The Hon''ble Supreme Court of India in various decision have pointed out the distinctions. In Federation of All India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors.(Supra), the Apex Court stated that the function may be same but the responsibility makes a difference. It was observed that the same amount of physical work may entail different quality of work ; some more sensitive some requiring more fact, some less - it varies from nature and culture of employment. In Grih Kalyan Kendra Workers'' Union v. Union of India and Ors.(Supra), it was further held that while considering the question as to whether employees of Grih Kalyan Kendra were discriminated in the matter regarding pay and other emoluments, it is not necessary to find out similarity by mathematical formula but there must be a reasonable similarity in the nature of work, performance of duties, the qualification and the quality of work performed by them. In State of Rajasthan v. Gopi Kishan Sen (Supra), the apex Court again held that a higher qualification and efficiency are factors which should be taken into consideration for the purpose of invoking the doctrine of equal pay for equal work. In K. Narayanan and Ors. v. State of Karnataka and Ors.(Supra), the Supreme Court categorically distinguished between Senior Engineer and Junior Engineer as also assistant engineer possessing different qualifications namely degree or diploma. Yet in a recent decision In State of West Bengal and Ors. v. Deb Kumar Mukherjee and Ors.(Supra), the Apex Court held that the persons working in different departments cannot claim equal pay. It was pointed out that Pay Commission recommended different pay scale for Inspectors in different departments which" is also a relevant factor for the purpose of consideration of grant of different scale of pay to different persons. The decisions relied upon Mr. Maitra, on the other hand, runs counter to his submissions. In State of Jammu & Kashmir and Ors. v. T.N. Khosa (Supra) the Supreme Court itself held that possession of a qualification is a relevant consideration for the purpose of grant of promotion. It is in that context the Constitution Bench of the Supreme Court observed:

Mini-classifications based on micro-distinctions are false to our equalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutions 1 validity. To overdo classification is to undo equality.

As indicate above, the Apex Court itself held that different qualification held by the Engineers namely degree or diplomas in engineering is a valid classification in law. The said decision has been quoted with approval in Mohd. Sujat Ali''s case. In B. Prabhakar Rao and Ors.''s case, the Supreme Court was concerned with a case of reduction of age of retirement from 58 to 55, and it upheld the validity of such an order. The Apex Court observed that if all affected employees hit by the reduction of age of superannuation formed a class and no sooner than the age of superannuation was reduced, it was realised that injustice had been done and it was decided that steps should be taken to undo what had been done, there was no reason to pick out a class of persons who deserved the same treatment and exclude from the benefits of the beneficent treatment by classifying them as a separate group merely because of the delay in taking the remedial action already decided upon. There cannot be any doubt as has been held in B. Prabhakar Rao''s case that while making the purported classification the State cannot exclude a few amongst the class unless their separate classification is impossible or is detrimental to public interest. However, those observations must be understood in the light of the matter pending for consideration before the Apex Court. In the instant case, it appears, that not only the Appellants but also the Respondents in their affidavit-in-reply to the stay application filed by the Appellants have produced many documents in support of their respective cases. It may be true as has been submitted by Mr. Maitra that the State had an opportunity, but despite the same it did not file any affidavit-in-opposition in the learned Trial Court. But as noticed hereinbefore, before us some materials have been placed to show that State has also a lot to say in the matter. In any event, as noticed hereinbefore, the learned Trial Judge did not advert itself to the question as regards application of doctrine of equal pay for-equal work in the light of various Supreme Court decision as noticed hereinbefore. Moreover, in our opinion, the question as to whether the Petitioners should be conferred with the status of a teacher and the question as to whether the Petitioners are entitled to same or similar scale of pay payable to the Technical Assistants are absolutely to different questions which are not at all connected with each other.

It may be that the cases of the Petitioners have been strongly recommended by all concerned authorities including the principal of Bengal Engineering College as also the Director of Technical Education as would appear from the materials placed before us, but the question which arises for consideration in the matter is that despite the same, the State did not accede to such request. Whether the State was right in the facts and circumstances of the case or not, would fall for judicial review by the learned Trial Judge.

In the interest of justice, we are of the view that the Appellant should be given an opportunity to produce all materials so as to enable the Court to consider the matter in its real perspective. We hope and trust that keeping in view the fact that the matter has been pending for a long time and the claim of the Petitioner had been recommended by several authorities, the learned Trial Judge will consider the desirability of disposing of the matter at an early date.

For the reasons aforementioned, this appeal is allowed. The impugned judgment is set aside and the matter is remitted back to the learned Trial Judge for a fresh consideration. The learned Trial Judge is requested to dispose of the matter at an early date and preferably within a period of four weeks from the date of receipt of lower court''s record. In order to avoid any delay in the matter, the Appellant would be entitled to use the Paper Books filed before this Court as the same contains all the relevant materials put forward by the contending parties. If any affidavit-in-opposition is to be filed, the same must be filed within two weeks from date and any reply thereto must be filed within two weeks thereafter.

There will be no order as to costs.

Satya Narayan Chakbaborty, J.

I agree.