The Union Of India And ANR v. Andaman And Nicobar Physical Teachers Association And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/7/2023 The Union of India and another Vs.

The Andaman and Nicobar Physical Teachers Association and others Mr. S.C.Mishra Mr. Sumit Karmakar ... for the petitioners Mr. Rajinder Singh ... for the respondent nos.1&2 Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondent nos.3 to September 20, 2023 [SR] Item No.1 The seminal point involved in this writ petition is whether the Physical Education Teachers under the Andaman and Nicobar Administration are entitled to Grade Pay of Rs.4600/- with effect from 1st January, 2006 on the basis of VIth pay recommendation.

The Tribunal was approached by the respondents association assailing the order of the Administration by which the aforesaid pay scale was extended to them with effect from 20th January, 2016 on the score that upon acceptance of the recommendation by the VIth Pay Commission, the Government accepted and extended its benefits on and from 1st January, 2006 including the several Union Territories and, therefore, the decision of the Administration in relation to the Andaman and Nicobar Islands that such Grade Pay would be extended to the aforesaid Physical Education Teachers from 20th January,2016 is not only an act of discrimination but deprivation of their legitimate rights.

The Tribunal, after considering the respective submissions of the parties, directed the benefit in terms of the said recommendation with effect from 1st January, 2006

which is assailed by the Union of India in the instant writ petition.

The impugned order would further reveal that a question was raised, when the Parliament was in session, by one of its member whether the VIth Central Pay Commission has been implemented in the Andaman and Nicobar Islands and/or whether miscellaneous category teachers such as Physical Education Teachers, Craft Instructors, Music Teachers, Librarian and Head Masters have been awarded with their entitled Grade Pay. An ancillary question was also put in the House pertaining to the Grade Pay awarded to the Physical Education Teachers working at Lakshadweep, Delhi, Puducherry, K.V.Sangathan. The answer to the first query by the Hon'ble Minister was in affirmative, meaning thereby the recommendation of the VIth Central Pay Commission has been implemented in the Andaman and Nicobar Islands.

So far as the second query, as indicated above, is concerned, the stand of the Union of India is explicit that these teachers have been granted Part-A pay scales as there is no mention about the extending Part-B pay scales to such category of teachers.

The answer to the last query is exposit of the affirmative answer that the Grade Pay of Rs.4600/- was extended to the Physical Education Teachers working in those Union Territories.

There appears to be a divergent views taken by the Administration of the respective UTs with regard to the effective date of implementation of such recommendation and a writ petition was filed before the Punjab and Haryana High Court, which was decided on 31st January, 2009 in a case of Rajbir Singh & others vs. Haryana State Electricity Board and others reported in (2009) 156 PLR 206. The said High Court held that when there appears to be a discrepancy and/or the anomaly in the revision of the pay scale, the correction has to be done on a date when such anomaly has arisen and cannot be implemented from the future date.

Apart from the same, it was the conscious decision of the Central Government that the recommendation of the VIth Central Pay Commission has been implemented and/or extended in the Andaman and Nicobar Islands as well as the other UTs.

It is also communicated that the Central Government have extended the Grade Pay of the Physical Education Teachers at Rs.4600/- in the other UTs though reliance

appears to have been placed upon the Rules 27(1) of the General Financial Rules, 2017 issued by the Ministry of Finance, Department of Expenditure that all the rules sanctions or orders shall come into force from the date of issue unless any other date which shall come into force is specified therein which can only be made applicable on fulfillment of the provisions contained in the delegation of financial powers rules. Though the aforesaid rule indicates that any sanction or the order relating to the financial affairs would be operative from the date of the issue but it can also be implemented and/or enforced from any other date as may be specified. The aforesaid General Financial Rule is framed in 2017 whereas the Central Government has already taken a conscious decision in respect of the Central Government employees throughout the country that its effect would be from 01.01.2006. All other UTs have extended the benefit with effect from 01.01.2006 and therefore, we find no reason why such recommendation has been directed to take effect from 20.01.2016.

The act of discrimination is visible and evident from the above facts and in view of the judgment of the Punjab and Haryan High Court as relied upon by the Tribunal the effect should be given from the date when such anomaly has arisen.

We are conscious that the Court should be slow in interfering with the policy decision taken by the government yet such policy decision has to withstand on the constitutional provisions and if there any infringement of the fundamental rights enshrined under Part III of the Constitution there is no fetter on the part of the Constitutional Court to interfere even with such policy decision.

All the citizens have to be treated equally by the government or the semi-government of the authority and shall not be discriminated on any account. The constitution has also provided a safeguard in this regard which is also recognized within the ambit of the constitutional provision to make a classification within a class but the same should also withstand on the touchstone of reasonability and intelligible differentia as classification within the class in absence of the aforesaid parameters offends the fundamental rights of the citizens.

We do not find that the Physical Education Teachers in the other UTs stand on the different pedestal that of the Andaman and Nicobar Islands and, therefore, the uniformity

or similar treatment is a hallmark of the constitutional ethos which cannot subverted at the level of the executive fiat. The Tribunal ultimately held that the decision to give effect from 20.01.2016 is an act of discrimination with the similarly circumstanced people holding the identical post in the other UTs and directed the equal treatment to be extended to the Physical Education Teachers in these islands.

We, therefore, do not find any infirmity and/or illegality in the impugned order.

The writ petition is dismissed. No order as to costs. Urgent Photostat certified copies of this order, if applied for, be made available to the parties subject to compliance with requisite formalities.

( Harish Tandon, J. ) ( Rai Chattopadhyay, J. )