S. Santosh Kumar And Others v. The Lieutenant Governor And Others
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction Appellate Side [ CIRCUIT BENCH AT PORT BLAIR ] ...
WPA/64/2022 S. Santosh Kumar and others ... Petitioners Vs.
The Lieutenant Governors ...
Respondents Mrs. Anjili Nag ... for the petitioners Mr. Shatadru Chakraborty Mr. Ramendu Agarwal ...
for the respondents August 23, 2022 [SR] Item No.1 [suppl.list] The twenty five writ petitioners before this Court pray for a direction on the respondent authorities for grant of 1/30th of the minimum of the relevant pay scale plus applicable dearness allowance from the date of the appointment of the writ petitioners.
It is the duty of the Court to first clarify that upon hearing learned counsel yesterday i.e., 22nd August, 2022, an order had been dictated in open Court. However, before signing the said order, this Court thought it fit and necessary to revisit the records. Certain facts were noticed upon reconsidering the documents and it is hence necessary to pass the order, again in open Court, for complete justice.
The writ petitioners are life guards who work on daily rate basis and are engaged in different places in the islands. The writ petitioners are all, what is generally termed as Daily Rate Mazdoors (DRMs).
The relief prayed for is based on an order passed by a Coordinate Bench on 8th March, 2019 in WP No.219/2018 on a similar set of facts. The petitioners before the learned Judge in that case were also life guards working on a daily rate basis and claimed the benefit of 1/30th of pay plus dearness allowance from the date of their appointment.
Learned counsel appearing for the petitioners submits that the petitioners before the Court in the present case stand on an identical footing as those before the Court in WP No.219/2018 and should hence be entitled to the financial benefit as prayed for. Counsel further places an order confirming the order of the learned Single Judge on 17th July, 2019. The 17th July, 2019 order of the Division Bench was not challenged by the Administration. Counsel relies on a provisional seniority list of life guards engaged in different units under the Directorate of Information, Publicity and Tourism (IP&T) which not only features the names of the writ petitioners before the Court in March, 2019 but also the petitioners before the Court in the present writ petition.
Learned counsel appearing for the Administration/ respondents disputes the contention that the present writ petitioners are similarly-situated to those in the earlier proceeding. Counsel relies on certain pleadings made in their affidavit-in-opposition in which a final seniority list of DRMs/life guards working under the Directorate mentioned above was prepared on certain criteria including the number of days worked in a certain time frame and the continuity of the work done. Counsel relies on a communication of 5th December, 2017 that the Labour Commissioner to the Chief Engineer which also lays emphasis on the continuity of service and the seniority of workmen being determined on the number of days in a 12 months period.
Upon hearing learned counsel appearing for the parties, there is little doubt that the 25 writ petitioners before the Court are similarly-circumstanced to those who were before the Court in WP No.219/2018 and were given the benefit of the financial scale as prayed for. A perusal of the order passed by the learned Single Judge on 8th March, 2019 shows that the relief was granted on the basis that the life guards/DRMs were performing the same work as those performed by regular workers. The Administration was hence directed to extend the 1/30th of the minimum of the relevant pay scale plus dearness allowance to the petitioner on that basis. The Division Bench in its order of 17th July, 2019 confirmed this part of the order. The other part of the order of the learned Single Judge relating to regularization is not relevant for the purpose of the present case.
Significantly, not only was the order of the Division Bench not challenged by the Administration, the Administration also proceeded to pass an order on 14th February, 2022 sanctioning the financial benefits to the
petitioners who were before the Court in compliance with the order of the Division Bench dated 17th July, 2019. The petitioners before the Court are life guards who also work on a daily rate basis. There is no material before the Court to come to a finding of a difference in status or position between the petitioners before the Court and those who were given the financial benefit by the Administration in the order dated 14th February, 2022. This view is bolstered by the fact that the provisional seniority list of life guards engaged in different units under the concerned Directorate, which is part of the writ petition, contains the names of all 25 writ petitioners before the Court together with those petitioners who were before the Court in the earlier proceedings.
Notably, a few of the petitioners in the earlier proceedings have also placed below the present petitioners in the seniority list. Hence, there is no conceivable reason for holding that the financial benefit which was sanctioned to the earlier group of petitioners should not be extended to the present petitioners. It should also be mentioned that the Office Memorandum No.289 dated 22nd September, 2017 (wrongly mentioned as in the affidavit-inopposition) had also been relied upon by the learned Government Pleader as part of the objection to the relief prayed for in the earlier proceedings. The Court considered the effect of the said Office Memorandum but nonetheless proceeded to grant the financial benefit to the petitioners before the Court.
It is further relevant to state that the Office Memorandum dated 22nd September, is subsequent to an Office Memorandum of 7th June, 1988 issued by the Ministry of Personnel, Public Grievance and Pension, Government of India, which provided for casual workers to be paid at the rate of 1/30th of the minimum of the relevant pay scale plus relevant dearness allowance where the same work was entrusted to the casual workers and the regular employees.
There is also a question of equity since the principle of parity of pay or "Equal pay for equal work" as it is popularly known is an accepted principle unless it is shown that the work which is being done by the rival categories is not at par or on the same plane; refer Sabha Shanker Dube Vs. Divisonal Forest Officer, AIR 2019 SC 220.
WPA/64/2022 is allowed and disposed of in view of the reasons stated above. The respondent authorities are directed to grant 1/30th of the minimum of the relevant pay scale plus applicable dearness allowance to the writ
petitioners from the date of their initial appointment which shall be given effect to within four weeks from the date of communication of this order. The respondent authorities shall bear in mind the order passed on 14th February, 2022 in similar circumstances and take steps accordingly.
( Moushumi Bhattacharya, J. )