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Judgment
Heard Mr. SK Singh, learned counsel for the petitioners and Mr. S Sharma, learned CGC for all the respondents.
The writ petitioners, who are Chargeman Communication (Non-Diploma Holder), by way of this writ petition are praying for the pay scale, as is
being given to Chargeman Communication (Diploma holders) as they are getting a lesser pay scale, though as per the General Reserve Engineer
Force Group ‘C’ and Group ‘D’ Recruitment Rules, 1982, hereinafter referred to as the “1982 Rules†, there is only one pay scale of
Chargeman Communication, earlier known as Chargeman signals. Also there is no differentiation or classification of Chargeman Signals, as per the
1982 Rules. As per the 1982 Rules, the posts of Chargeman Signals has to filled up by way of direct recruitment from candidates having three years
recognized diploma license in Electronic/ Communication/ Radio Engineering or equivalent with one year experience. It can also be filled up by way of
promotion from Radio Mechanic with 5 years regular service in the Grade in General Reserve Engineer Force (GREF) or by deputation. The
educational qualification required for appointment as a Radio Mechanic is matriculate. There is no fixed quota for direct recruitment and promotes as
per the 1982 Rules and the same is subject to variation dependant on workload.
The petitioners, who are all non-diploma holders were initially appointed as Radio Mechanic in the General Reserve Engineering Force (GREF) in
the pay scale of Rs.1320-30-1560-ED-40-2040 from 1983 onwards. The petitioners were thereafter promoted as per 1982 Rules to the posts of
Chargeman Signals vide order dated 18.07.2003 on the recommendation of the Central DPC held on 04.06.2003. Subsequently, the nomenclature
“Chargeman Signals†was re-designated as Chargeman Communication.
The petitioners’ counsel submits that the Chargeman Communication (Diploma Holder) is presently enjoying the pre-revised scale of Rs.5000/-
to Rs.8000/-, while the petitioners are getting a lesser amount without any justification for the same. He submits that the petitioners, who are doing the
same nature of duties cannot be given a lesser pay scale just because they are non-diploma holders.
Mr. S Sharma, learned CGC submits that the nature of duties of the petitioners and the Chargeman Communication (Diploma Holder) are different.
He also submits that petitioners are now receiving the pay scale of Rs.9300-34800 with Grade pay of Rs.4200, as is being given to the Chargeman
Communication (Diploma Holders), under the MACP schemes w.e.f. 18.08.2011.
The 1982 Rules provides for recruitment of Chargeman Signals through direct recruitment and promotion of Radio Mechanic with 5 years regular
service in the GREF and there is only one pay scale payable to the Chargeman Signals.
The letter dated 13.05.2009 issued by the GREF at Annexure-12 states that the pay scale of Chargeman Signals (Diploma Holder) is upgraded to
Rs.5000/- to Rs.8000/-.
A perusal of the Recruitment Rules clearly goes to show that the pay scale that is to be given to a Chargeman Signals is the same for persons who
are directly recruited and those who are promoted. There is no differentiation of pay scale in the Recruitment Rules. The pay scale applicable to
Chargeman Signals as per Recruitment Rules for the direct recruitment and the promotee is Rs.425-15-500-EB-15-560-20-700.
In the present case, upgradation of the pay scale in respect of Chargeman Signals (Diploma Holder) who are directly recruited, have been made on
the basis of letter dated 13.05.2009 issued by the Joint Director, DGBR. No reason for upgradation of the pay scale of the Chargeman Signals
(Diploma Holder) has been submitted by the respondents. Also no reasons have been given by the respondents why the pay scale of non-diploma
holders are also not upgraded alongwith diploma holders. In the case of Promod Singh and Others in WP (C ) No.3756 of 2009 which was disposed of
by this Court vide order dated 01.02.2011, this Court had considered the question of whether the payment of higher pay scale to the Diploma Holder
of the Charge Mechanic vis-Ã -vis non diploma holder Charge Mechanic was reasonable and legal.
This Court in the aforesaid case held that the upgraded pay scale given to the diploma holder Charge â€"Mechanic would also have to be extended
to the non-diploma holder Charge Mechanic. While arriving at the said decision, this Court gave its reasoning and findings in paragraph-14 to 16 which
is reproduced below:
“14. In the aforesaid decision as in the instant case, the Court was confronted with the interpretation of the aforesaid recommendation made by the
6th CPC. The concluding para of the said judgment reads as follows:
“21. It is well settled law that when Executive instruction conflicts with the statutory provision the latter will prevail. In the absence of any conflict
both will prevail. Ref: (2004) 2 SCC 297. The Apex Court in SK Abdul Rashid & Ors. vs. State of Jammu and Kashmir & ors. : (2008) 1 SCC 722 (in
para 15 of the SCC) held that:
“15. No executive order could be issued in derogation of the statutory rules far less to legislative Act. The Rules being statutory in nature and
having been framed under the Jammu and Kashmir Civil Servants (Removal of Doubts and Declaration of Rights) ordinance, 1956 have statutory
force, the executive order in question was required to be issued in consonance with and not in derogation thereof.â€
“In the present case the executive instruction/decision vide the impugned letters dated 03.10.2008 (Annexure No. 13) which are in derogation of
the Central Civil Service (Revised Pay) Rules, 2006 for the post of Overseer and also the recommendation in para 7.39.22 of the 6th Central Pay
Commission which has been approved by the Central Govt. by necessary enactment of the Rules the said Rule, are illegal and not acceptable under
the law.â€
In All Assam Fishery Officials Technical Association (supra), this Court dealing with the question of parity in basic scale of pay between the two
sets of Fishery Extension Officers in the same department, one with B.Sc. with Zoology and another with B.F.Sc. Degree and noticing the fact that
both the said qualifications were entry level qualification and both the groups enjoy the same basic pay, held that B.Sc. Degree holders were entitled to
parity in pay so far as there is no distinction in duties, responsibilities and status between the two groups.
Dealing with the concept of “equal pay for equal work†and the claim of the petitioners involved therein for entitlement of the same pay scale
as that of B.F.Sc. degree holders, observed thus:
“7. “Equal Pay for Equal Work†and claims for parity in pay is one of the thorny problems of service jurisprudence. Fixation of pay is
essentially an executive function to e performed by the experts in the field like the Pay Commission and other such expert bodies. The role of the
Court in such matters would naturally be severely limited. In recognizing the concept of equal pay for equal work first as a constitutional goal and then
as a constitutional right, judicial opinion has undergone some transformation and the Courts have undertaken the exercise of scrutinizing the question of
disparity in pay form the stand point of Article 14 of the Constitution. It will however be difficult and yet at the same time unnecessary to even attempt
to lay down exhaustively the various factors that should go in to determination of a claim of parity in pay. Academic qualifications prescribed for
appointment to a particular post; similarly in duties attached to the post in question; the responsibilities undertaken; promotional avenues and the
conditions of service upon promotion are some of the factors which would have relevance. No single factor would however be determinative of the
question. It is the overall picture that would emerge from the consideration of all relevant factors, which will decide the tenability or otherwise of a
claim for parity in pay.
In matters relating to equal pay for equal work, the burden to establish the right to equal pay lies on the person claiming the same. Petitioners will
have to make out a case that there is no qualitative difference in the duties, functions and responsibilities of the petitioners with the group he claims
parity of pay scale. In the case of Federation of All India Customs and Central Excise Stenographers â€"vs- Union of India reported in (1988) 3 SCC
91, the Apex Court has held as below:
“ Equal pay for equal work is a fundamental right. But equal pay must depend upon the nature of the work done, it cannot be judged by the mere
volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a
difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged
with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an
intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination.â€
In the present case, nothing has been produced by the respondents to show that there is any difference in the duties and responsibilities of
Chargeman Signals (Non-Diploma Holders ) and Chargeman Signals (Diploma Holders). No reasons have been given by the respondents as to why
only the pay scale of the Diploma Holders have been upgraded. The 1982 Rules provides for only one pay scale and two modes of recruitment. The
petitioners, who are Non-Diploma Holders have come into the Grade by way of promotion. Though it is not prohibited in law to have two Grades of
posts in the same cadre, the 1982 Rules not having been amended, the Diploma Holders and Non-Diploma Holders are both holding the post of
Chargeman Signals and they both belong to the same grade. Accordingly, this Court finds that the upgradation of pay scale of only the diploma holders
has not been justified by the respondents.
The upgradation of pay scale of Chargeman Signals (Diploma Holders) was done by the respondents on the basis of the 6th Pay Commission
recommendation, which is reflected in the letter dated 18.06.2009 issued by office of CE, Project Deepak, which is to the following effect:-
“4. 6th Pay Commission has also recommended that “Other posts similarly placed and carrying minimum qualification of Diploma in Engineering
should be extended in the “Pay Scale†Rs.5000-8000 (Pre-revised) Rs.9300-34800 (Revised) PB-2 with Grade Pay of Rs.4200/-. Commission
has also advised the Govt. to implement this retrospectively from 1.1.1996, at least for the purpose of fixation of pay (Para 7.39.22 and 7.39.3 of 6th
Pay Commission Report & same has also been accepted by the Govt. in toto.â€
This Court in WP ( C) No.51 of 2009, GS-1617520BSR, Ghanashyam Viswakarma â€"vs- Director General, Border Road Organization and Ors
had the occasion to deal with a similar upgradation of pay scale given only to Overseers (Diploma Holders) and not giving the same to Overseers who
were not diploma holders. This Court in WP ( C) No. 51 of 2009 dealt with paragraph 7.39.22 and paragraph 7.39.3, which is also the subject matter
of thiscase . In the above WP ( C) No. 51 of 2009, this Court vide Judgment and Order dated 10.09.2010 has stated in paragraph -14, 15, 16 and 17 as
follows:
“ (14) Keeping in view of the above decisions of the Apex Court regarding construction or /interpretation of statue/ rules and accepted principles of
‘Interpretation of stature or/ rules this Court has given careful and anxious consideration of mind for interpretation of the said para 7.39.22 of the
report of the 6th Central Pay Commission, which has been accepted by the Government of India. On bare perusal of the said para 7.39.22 of the
report, it is crystal clear that the recommendation of the revision of pay at Rs.5000-Rs.8000/- is for the post of Overseer, for which minimum
qualification for direct recruitment is diploma w.e.f. 1.1.1996; and that the recommendation of the revision of pay is not with reference to the
incumbents for the post of Overseer, for which minimum qualification for direct recruitment is diploma holder.
(15) As stated above, admittedly in the present case, under the existing Recruitment Rules, 1996 the post of Overseer is to be filled up 80 % by direct
recruitment and minimum qualification for direct recruitment is diploma in engineering and remaining 20% are to be filled up by promotion from
amongst the Mason and Carpenters who are matriculate and passed, the trade test examination with three years regular service. For the sake of
repetition, it is reiterated that on bare perusal of para 7.39.22 of the 6th Central Pay Commission, it is clear that the Commission recommended that
the post of Overseer may be upgraded and merged with their promotional posts of Superintendent BR-II (present scale of Rs.4500-7000/-) and
combined cadre extending the scale of Rs.5000/8000/- and the post will be placed in the revised Pay Band PB -2 of Rs.8700-34800/- along with a
grade pay of Rs.4200/- .
In nowhere of the said recommendation, i.e. para 7.39.22 of the 6th Central Pay Commission it is mentioned that the promote of the post of Overseer
having no qualification of diploma in engineering shall not be allowed to enjoy the revised pay scale i.e. Rs.5000-Rs.8000/- for the post of Overseer,
for which minimum qualification for direct recruitment is diploma holder.
(16) One should not mix up with the qualification of diploma mentioned in the said para 7.39.22 of the recommendation of the 6th Central Pay
Commission while revising the pay scale of the incumbents of the post of Overseer inasmuch as minimum qualification of diploma mentioned in the
said para is only for qualifying the post of Overseer. As discussed above, the authority cannot add words to the said para or read words into it which
are not there, especially when the literal reading of the said para produced an intelligible result.
According to the maxim “Expressum facit cessare taciturn†which has been discussed above, when there is an expression mentioned of certain
things, then anything not mentioned is excluded. Therefore, the irresistible conclusion in the present case is that the revision of pay scale of the
incumbent of the post of Overseer by interpreting the said para 7.39.22 of the recommendation as if it referred to the incumbents and not to the post,
i.e. Overseer, is not at all acceptable inasmuch as the respondents have misunderstood the principles of interpretation of statute and the maxim
“Expressum facit cessare taciturn†while understanding the said para 7.39.22 of the recommendation of the 6th Central Pay Commission. The
ratio of the Judgment and Order dated 10.09.2010 passed in WP ( C) No.51 of 2009 in the opinion of this Court, also covers the present case.
In the present case also, the Recruitment Rules has been made in pursuance to the provisio to Article 309 of the Constitution, wherein the same
pay scale had been provided for persons who have been directly recruited to the post of Chargeman Signals and to the promotees. In para 7.39.22 of
the 6th Central Pay Commission, there is no mention that the promotees to the post of Chargeman Signals, who do not have the diploma qualification
shall not be allowed to enjoy the upgraded pay scale. Further, the concept of equal pay and equal work, with regard to the duties of the Chargeman
Signals, both diploma holder and non-diploma holders not having been distinguished by the respondents’ counsel , this Court finds that the non-
upgradation of the pay scale of the Chargeman Signals (Non-Diploma Holder) is not proper and is arbitrary. Accordingly, this Court holds that the
petitioners who are Chargeman Signals (Non-Diploma Holder), are also entitled to the same pay scale as Chargeman Signals (Diploma Holder).
The above being said, the prayer of the petitioners herein is to extend the upgraded revised pay scale w.e.f. 01.01.1996. The petitioners in
paragraph-7 have stated that they have been granted the pay scale of Rs.9300-34800/- with Grade pay of Rs.4200/-w.e.f. 18.08.2011 under the
MACP Scheme as they have completed 20 years of service.
In the case of Harendra Chandra Nath â€"vs- State of Tripura reported in 2013 (4) GLT 1094, the Division Bench of this Court had held that the
petitioners do not have any right to recover arrears beyond 3 years from the date of filing of the original writ petition. The said decision was made on
the basis of the Judgments of the Apex Court in the case of M.R. Gupta â€"vs- Union of India reported in (1995) 5SCC 628 and Union of India
â€"vs- Talsem Singh reported in (2008) 8 SCC 648. The present writ petition having been filed on 20.06.2013 , the petitioners would be entitled to
recover actual arrears only for a period of 3 years, before the date of filing of the writ petition i.e. w.e.f. 21.06.2010. Accordingly, as this Court has
held that the petitioners are entitled to payment of the upgraded pay scale as is given to the Chargeman Signals(Diploma Holder), the said pay scale
should be immediately provided to the petitioners and the arrear if any should be paid from 21.06.2010. The arrears should be paid within a period of 6
months from today.
Writ petition is accordingly allowed.