S.Ponnammal v. The Union Of India And ORS.
IN THE HIGH COURT AT CALCUTTA
CIRCUIT BENCH AT PORT BLAIR ...
WPA/47/2020 S. Ponnammal ... Petitioner Vs.
The Union of India and others ... Respondents Mr. Deep Chaim Kabir, Mr. Ajiths Prasad, Advocate ... for the petitioner Mr. Shatadru Chakraborty, Advocate ... for the respondents December 14, 2021 [GNC] Item No. 18 The petitioner seeks parity in the pay band and Grade Pay of Rs.4200/- with effect from January 18, 2011 along with all consequential benefits with regard thereto.
Learned advocate appearing for the petitioner submits that the petitioner was appointed as a Hindi Translator by an order No. 43 dated March 11, 2010 with the pay scale 4500-125-7000 (revised pay of PB-I 5500-20200 with grade pay Rs, 2800/-). The petitioner was given revised pay band by order No. 77 dated March 22, 2010.
Learned advocate appearing for the petitioner submits that the Administration published a Notification dated January 18, 2011 for the post of Hindi Translator with the pay band of PB-2 Rs. 9300-34800/- plus grade pay of Rs. 4200/-. Since the pay band and the grade pay were much higher than that enjoyed by the petitioner and since the petitioner was discharging the same duties as that of Hindi Translator of the Administration, the petitioner was entitled to pay parity. The petitioner, therefore, submitted a number of representations.
The petitioner was intimated of the decision of the High Court by a letter dated November 16, 2017. By such decision, the High Court was of the view the petitioner may be extended the pay band/grade pay/pay scale of the Hindi Translator as obtaining for the Administration with effect from January 18, 2011. However, the Administration is silent on the issue despite the petitioner making a representation to the Administration. Learned advocate appearing for the petitioner draws the attention of the Court to the educational qualification required for a Hindi Translator of the Administration and the educational qualification of the petitioner. He submits that at the time when the petitioner was appointed, the educational qualification required for appointment was a Bachelors degree which she possesses.
He refers to a Notification dated January 18, 2011 issued by the Administration, in particular to Schedule-II thereof. He submits that educational and other qualifications required for direct recruitment to the post of Hindi Translator is Masters Degree in Hindi from a recognized university with English as one of the subject at degree level or a Masters Degree in English, from a recognized university with Hindi as one of the subject at the Degree level or a Masters Degree in any subject from a recognized University with Hindi as one of the subject at Degree level. He also draws the attention of the Court to the various other clauses of Schedule-II. He submits that there are two methods of being appointed to the post of Hindi Translator in the Administration. One of such method is by promotion which is limited to 25%. Even there, if such 25% by promotion cannot be
filled up then by direct recruitment and the balance 75% by direct recruitment.
He submits that the petitioner obtained Masters degree in English from a recognized University with Hindi being a subject at the degree level. Therefore, he submits that the petitioner possesses requisite educational and other qualifications as required for direct recruitment to the post of Hindi Translator in the Administration. The petitioner discharges similar duties as that of the Hindi Translator of the Administration while discharging her functions in the High Court. Therefore, the petitioner in all fairness should be given pay parity with that of the Hindi Translator of the Administration. Presently she is receiving less than what a Hindi Translator of the Administration receives for discharging same duties and functions. In any event, the High Court allowed her prayer and requested the Administration to provide her the benefits with effect from January 18, 2011.
Learned advocate appearing for the Administration draws the attention of the Court to the contents of the letter dated August 22, 2019 and October 14, 2019 written by the Administration. He submits that essentially, the petitioner is seeking up-gradation of the pay scale which amounts to creation of a new post for which concurrence of the Ministry of Finance is required. He contends that the educational qualification for the two posts are different. The duties discharged are also different. Therefore, the petitioner cannot claim pay parity. The petitioner was appointed as a Hindi Translator for the High Court by order No.43 dated March 11, 2010 with pay scale
of Rs.4500-125-7000/- (revised pay of PB-I 5200-20200 with grade pay of Rs.2800/-). The petitioner made a representation subsequent to the publication of the Notification of the Administration for appointment to the post of Hindi Translator with a higher pay band, grade pay and scale of pay. The High Court Administration considered such representation of the petitioner favourably. The petitioner was communicated the decision of the High Court by a letter dated November 16, 2017. The High Court requested the Registrar, Circuit Bench at Port Blair to move the Administration on the following points:- "1.
The benefits of Schedule-II of the notification bearing no.26/2011/F.No.2-14/2004-OL dated 18th January, 2011 issued by the A & N Administration, may be made applicable to Smt.S.Ponnammal, Hindi Translator, Circuit Bench of the Calcutta High Court at Port Blair; and 2.
The Pay Band/Grade Pay/Pay Scale of Hindi Translator of the A & N Administration, being Rs.9300-34800/- ( PB-2) with Grade Pay of Rs.4200/- may be extended to her with effect from 18.1.2011."
The Registrar, Circuit Bench communicated the decision of the High Court to the Administration by a letter dated December 8, 2017. The Administration responded thereto by a letter dated August 22, 2018. The Administration contended that the request was examined with the consultation of the Finance Branch of the Administration whereupon, the Administration is of the view that the up-gradation of pay scale of a post amounts to creation of a new post for which Ministry of Finance is competent authority. Moreover, creation of new post was totally banned by the Government of India.
The request of the High Court was reiterated to the Administration to which, the Administration by a letter dated
October 14, 2019 negated the request on the same lines as that of the earlier negation dated August 22, 2018. By a Notification dated January 18, the Administration framed Rules called the Andaman and Nicobar Administration (Group-B post of Official Language Department) (Non-gazetted) (non-ministerial) Recruitment Rules, 2011. It dealt with the post of Senior Hindi Translator and Hindi Translator. Schedule-II of such Rules prescribes the various requirements for appointment to the post of Hindi Translator including the educational qualification thereof. The educational qualification prescribed is as follows:- "
8.
Education and other qualifications required for direct recruits.
Essentials:
1. Master Degree in Hindi from a recognized University with English as one of the subject at Degree level OR
2. Master Degree in English from a recognized University with Hindi as one of the subject at Degree level OR Master Degree in any subject from a recognized University as one of the subject at the Degree level.
Desirable:
Diploma in Translation from a recognized University.
OR Two years experience in Translation from English to and vice-versa in any Govt/Semi-Govt. Organisation.
Note:
The qualification can be relaxed at the discretion of Lt.
Governor (Administrator), A&N Islands, in case candidate
otherwise well qualified.
There are two avenues of appointment to the post of Hindi Translator as prescribed by the Rules of 2011. One of such avenues is by way of promotion which is limited to 25%. However, it also provides that failing 25% being achieved by promotion the vacancy will be filled up through direct recruitment. The other mode of appointment is 75% by direct recruitment.
The affidavits and the materials placed before the Court establishes that the petitioner possesses bachelor degree in Arts with Hindi as subject from Pondicherry University which is a recognized University. She subsequently, did her Masters in English also from Pondicherry University which again is a recognized University. She, therefore, qualifies so far as the educational qualification is concerned as prescribed by the Rules of 2011. She obtained her Masters degree prior to the Rules of 2011 coming into force.
The Administration did not place any materials on record to establish that the work of Hindi Translator in the High Court is different or of lesser value then a Hindi Translator of the Administration. The murmur in the affidavit in opposition to the contrary not being supported with any cogent evidence, cannot be given credence. Therefore, it would be appropriate to draw an inference particularly given the nomenclature of the two posts that an incumbent in the two posts discharge similar duties. On such interference is drawn, then, the incumbents in the two posts are entitled to pay parity.
In the facts of the present case admittedly, the petitioner is not receiving the same pay as that of a Hindi Translator of the Administration. Consequently, the High Court considered the claim of the petitioner in the administrative side and requested for extension of the benefits as contained in the writing dated November 16, 2017. The Administration, however, rejected such request of the High Court on the ground that granting same pay to the petitioner as received by a Hindi Translator appointed by the Department will tantamount to up-gradation of pay scale of a post which means creation of a new post.
With respect, such contention of the Administration cannot be accepted. The petitioner is seeking pay parity. In the facts of the present case, the petitioner is entitled to pay parity. Granting pay parity is neither up-gradation of pay scale nor does it amount to creation of a new post. In any event, the first negation of the Administration is dated August 22, 2018 where the Administration also sought the shelter of concurrence of the Ministry of Finance. The Administration did not place anything on record today to suggest that the Administration applied to the Ministry of Finance to seek concurrence or approval. In such circumstances, the WPA/47/2020 is allowed. The petitioner be granted the benefits in terms with the benefit expressed in writing of the High Court dated November 16, 2017 forthwith.
(Debangsu Basak, J. )