The Lieutenant Governorn And ORS v. Anil Kumar And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR *** WP.CT/54/2023 The Lieutenant Governor and others Vs.

Anil Kumar and others Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the petitioners November 20, 2023 [SR] Item No.6 1.

The writ petition is directed against an order passed by CAT on 8th January, 2022 by which the Chief Secretary, Andaman & Nicobar Administration has been directed to formulate a scheme for incorporating commensurate pay scale for Laboratory Assistants in terms of their Recruitment Rules in the light of the observation of the Hon'ble Supreme Court in Secretary Finance Department vs. West Bengal Registration Service Association (AIR 1992 SC 1203) and forward the said proposal to the office of the respondent No.1 to decide on how to resolve in consultation with the Ministry of Finance to resolve the paradox of those in feeder posts of Laboratory Attendants continuing to enjoy the higher pay scale of the promotional cadre of Laboratory Assistants by virtue of inadvertent error of the respondent organization the respondent No. 1 was directed to decide on the appropriate pay scale of the Laboratory Assistants in the backdrop of the facts mentioned in the said judgement. This order is under challenge.

2.

The grievance of the writ petitioner appears to be that the learned Tribunal has failed to take into consideration that the post of Laboratory Attendants was created during 1991 on a pay scale to the tune of Rs. 750 - 940/- and it was on the basis of the order passed by Learned Tribunal during 2004 the first set of employees under Laboratory Attendants got enhancement of their pay to the tune of Rs. 1200 - 30 - 1560 - 40 - 2040/- and due to inadvertent mistakes some of the Laboratory Attendants have received and continue to receive such higher scale although they were not entitled to the said scale. 3.

The problem the learned Tribunal faced in deciding the application of the Laboratory Assistants was that by virtue of orders passed in favour of the Laboratory Attendants fixing their pay scale to which they were otherwise not entitled to under the Recruitment Rules they are now at par with the Laboratory Assistants although the Laboratory Assistants are on a higher grade of pay and the two posts are not equivalent. 4.

In view of the fact that the petitioners as Laboratory Assistants are entitled to a higher grade of pay than that to the Laboratory Attendants and such prayer was denied. The writ petitioners who are Laboratory Assistants in various schools of the respondent Administration have approached to the Tribunal ventilating their grievance of the Administration not considering their prayer for enhancement of their revise pay of scales as per 4th, 5th, 6th and 7th CPC vis-à-vis the Laboratory Attendants. 5.

In or about 1991 fifteen posts of Laboratory Attendants in the pay scale of Rs. 750 - 940/- vide order No. 5273 dated 19th

November, 1991 with the approval of the Hon'ble Lieutenant Governor, Andaman and Nicobar Islands was created. The pay scale to the tune of Rs. 750 - 940/- which was granted to the newly created posts Laboratory Attendants were equivalent to the pay scale or erstwhile Group D Staff. During 2003 a group of Laboratory Attendants from the above persons approached the learned Tribunal and filed an Original Application bearing No. OA/73/AN/2003 (Palaniappan & others vs. Education (A&N)) with a prayer to grant them pay scale of Rs. 1200 - 2040/- which is at par with the pay scale of Laboratory Assistants. The said application was disposed of by the Tribunal on 12th January, 2004 by directing the Administration to consider the case of the applicants. In compliance thereof the Education Department vide an order No.

3444 dated 16th August, 2004 had allowed the higher pay scale to the applicants as asked by them without recording any valid reasons. On the strength of the above orders another group of Laboratory Attendants in a subsequent OA No. 71/AN/2008 (Dilip Kumar and others vs. Union of India and others) had obtained the said benefits from the department by virtue of order of the learned Tribunal dated 10th December, 2008.

6.

In compliance of the aforesaid orders on 27th March, 2009 the Administration passed the revised pay scale of the post of Laboratory Attendants to Rs. 4500 - 7000/- as per 5th CPC. Inspired by the aforesaid orders one Subash Mondal filed OA/2/2010 claiming the similar reliefs and the learned Tribunal following the earlier orders extended similar benefits to

the Subash Mondal and the Administration was directed to enhance the pay scale of Rs. 1200 - 2040/- (pre revised as per 4th CPC) from the date of final appointment and thereafter to fix the scale of pay at Rs. 4000 - 6000/- with effect from 1st January, 1996 in the light of the order passed in Palaniappan (Supra).

7.

The aforesaid said order was upheld by the Division Bench and the Special Leave Petition was dismissed. Thereafter, in compliance of the order dated 26th March, 2019, passed in OA/345/AN/2019 (Sunil Ekka & others vs. Union of India and others), the respondent authorities vide order dated 14th September, 2020, granted the enhanced pay scale as per 5th CPC to the applicant - Laboratory Attendants. The applicants, who were Laboratory Assistants made various representations to the authorities namely the writ petitioners for granting them the revised pay scale as per 5th CPC recommendations in the pay scale of Rs.4500-7000/- w.e.f 01.01.1996 and in terms of 6th CPC recommendations in the pay scale of Rs.5200-20200/- with grade pay of Rs.2800/- and, thereafter, to further revise their pay in terms of 7th CPC commendation with consequential benefits.

8.

However, those representations were not considered. In view of such failure to consider such representations, the Laboratory Assistants approached the Tribunal in OA 351/118/AN/2021 which was disposed of by the Tribunal on 25.01.2021 directing the Director of Education of the

respondent Administration or any other competent respondent to dispose of the representation of the applicants keeping in view the relevant rules and regulations in force. The respondent authorities, however, rejected the prayer of the applicants vide order dated 23.07.2021. This order was challenged in the original application forming the subject matter of writ application.

9.

The applicants have contended that they are occupying a higher post as compared to those of the Laboratory Attendants and in terms of various judicial orders, the pay scale of Laboratory Attendants were suitably revised in terms of 4th, 5th, 6th and 7th CPC recommendations. However, there was no such consideration with regard to the Laboratory Assistants. The applicants are in possession of matriculation and higher qualification and they have duly fulfilled the requisite criteria as per the statutory requirement rules. A notification dated 15.04.1983 from the Union of India also notified that Class IV employees and Laboratory Attendants, who are Matriculates with Science would be eligible for promotion to the post of Laboratory Assistant. This would clearly establish that the Laboratory Attendants is a feeder post to the post of Laboratory Assistants.

10.

Although the Administration has implemented the higher revised scale as per recommendations of various Pay Commission for Laboratory Attendants, they have maintained a

studied silence over the issue of revision of pay scale of Laboratory Assistants.

11.

The respondent in this proceeding has contended that the revised pay scale granted to the Laboratory Attendants was erroneous. However, inadvertently such benefit was extended to the Laboratory attendants.

12.

It is submitted that the order passed in Palaniappan, K. Dilip Kumar, Subash Mondal and Sunit Ekka should not have been implemented. However, having regard to the fact that the order passed in Subash Mondal was affirmed by the Supreme Court, the Administration had no other option but to implement the said order by reason whereof the pay scale sanctioned to the Laboratory Attendants came to be at par with that of the Laboratory Assistants.

13.

It is contended that the applicants are enjoying the pay scale as permissible to them in terms of the relevant recruitment rules for the posts of Laboratory Assistants and accordingly, the petitioners cannot be directed to pass any order revising the scale of pay of the Laboratory Assistants dehors the recruitment rules which is statutory in nature. 14.

It is further contended that none of the Pay Commissions from 4th to 7th CPC had ever recommended any upgradation of the Laboratory Assistant and, that, although the Laboratory Attendants enjoyed a Pay Scale a pay scale of Rs.1200-2040/- as per 4th CPC, the same was revised to Rs.4000-6000/- as per

6th CPC, the Laboratory Attendants, however, were never granted a pay scale of Rs.4500-7000/- as per 5th CPC. 15.

The Tribunal in disposing of the original application has recorded admission on the part of the Administration of having committed an error in enhancing the pay scale of the Laboratory Attendants. Once such revised pay scale has been implemented by the authorities, similarly circumstanced Laboratory Attendants had sought benefit of such revised pay scale and such implementation was upheld by various judicial fora.

16.

The Tribunal has relied upon a judgment in WPCT No.679 of 2012 (Union of India and others vs. Shri Subhash Mondal). The observation of the Court reads as follows: "............

It is not in dispute that the petitioner is also a Laboratory Attendant and similarly situated as the petitioners in respect whereof the order dated August 16, 2004 was passed. What is submitted on behalf of the petitioners herein is that the Tribunal had, by its order dated January 12, 2004, only required the representations of certain employees to be considered, but the Administration misread the order and allowed the higher pay scale without giving any reasons. This, it is suggested by the petitioners , was an obvious mistake.

It transpires that another lot of Laboratory Attendants, on the strength of the order dated August 16, 2004, have obtained the same benefits as the employees covered by such order. It is argued that the respondent herein was buoyed by the windfall gain of similarly situated employees to approach the Tribunal for the benefit.

Even though there is no equality recognized by Article 14 of the Constitution in the negative sense, it has also to be regarded that similarly placed persons cannot be dissimilarly treated. To begin with, there cannot arise any presumption that the order dated August 16, 2004 was a mistake. In any event, no attempt was made by the Administration to refer to the order as a mistake or to take steps to rectify the same prior to the petition filed by the respondent before the Tribunal. Further several employees similarly placed as those originally named in the order of August 16, 2004 have obtained the benefit by referring to such order; and yet the Administration did not discover the 'mistake'. In the circumstances, it cannot be accepted that the order dated August 16, 2004 was a mistake or that similarly placed persons as those referred to in such order obtain the same benefit as conferred by such order. ......."

17.

From the aforesaid judgment, two things are clear that similarly placed person cannot be dissimilarly treated and no attempt has been made by the Administration to refer to the order as a mistake or to take steps to rectify the same prior to the petition being filed before the Tribunal. The issue was whether the applicants would be entitled to upgradation/revision of their pay scale to Rs.4500-7000/- with effect from 1st January, 1996 ( in terms of 5th CPC), to Rs.520020200 with grade pay of Rs.2800/- with effect from 1st January, 2006 ( in terms of 6th CPC), and finally, revision of their pay scale in Level-5 with grade pay of Rs.2880/- as per 7th CPC, with all consequential benefits.

18.

The learned Tribunal has rightly pointed out that the State cannot act in violation of such statutory rules, unless so amended. Hence given the present scenario the respondent authorities are bound by their recruitment rules and they cannot exceed their boundaries by granting pay scales any higher than that permitted by such recruitment rules. 19.

The learned Tribunal has referred to the decisions of the Hon'ble Supreme Court in Gurpal Tuli vs. State of Punjab (1985) 3 SLR 259 SC; and St. Stephen's College vs University of Delhi (1992) 1 SCC 558 at 612 where it has been held that the pay scale of a category of an employee cannot be upgraded unilaterally on the ground that the employees in the feeder posts are enjoying a pay scale at par with those in the promotional post.

20.

In St.Stephen's College (supra), it was held that the pay scale which are framed in a descending order, mandates that unequal cannot be treated as equals. In Secretary Finance Department (supra), the Apex Court has held as follws: "Ordinarily a pay structure is evolved keeping in mind several factors, e.g.,(i) method of recruitment, (ii) level at which recruitment is made, (iii) the hierarchy of service in a given cadre,(iv) minimum educational/technical qualification required, (v) avenues of promotion, (vi) the nature of duties and responsibilities, (vii) the horizontal and verticle relativities with similar jobs, (viii) public dealings, (ix) satisfaction level, (x) employer's capacity to pay, etc. Several factors have to be kept in view while

evolving a pay structure and the horizontal and verticle relativities have to be carefully balanced keeping in mind the hierarchial arrangements, avenues for promotion, etc. Such a carefully evolved pay structure ought not to be ordinarily disturbed as it may upset the balance and cause avoidable ripples in other cadres as well."

21.

It has laid down the guidelines to be followed for fixation of pay structure. The Tribunal has observed that the writ petitioner had failed to perceive a carefully evolved pay structure as it had upset the balance between the feeder post of Laboratory Attendants and promotional post of Laboratory Assistants and therefore, has caused ripples in the cadre of the Laboratory Assistant. The observation of the Hon'ble Supreme Court in Secretary Finance Department (supra) has been relied upon by the Tribunal as stated above.

22.

In Lalit Mohan Deb vs. Union of India (AIR 1972, SC

995) it was held that the pay of a promotional post cannot be the same as the pay of feeder post and that the state cannot discriminate between equals.

23.

On such consideration, the Tribunal did not interfere with the speaking order issued by the respondent authorities. However, the original application was disposed of with the following directions:

" At the same time, however, this Tribunal would direct the office of respondent no.3 who is Chief Secretary, Andaman and Nicobar Administration to formulate a proposal for

incorporating a commensurate pay scale for Laboratory Assistants in terms of their Recruitment Rules to the competent authority in the Union of India, particularly, in the light of the Hon'ble Apex Court's observations in West Bengal Registration Service Association (supra). Once such proposal reaches the office of the respondent no.1, who is represented by Secretary, Ministry of Human Resources Development, Government of India, the said respondent no1 may confer, if so required, suitably with the Ministry of Finance to decide on how to resolve the paradox of those in the feeder post of Laboratory Attendants continuing to enjoy the higher pay scale of the promotional cadre of Laboratory Assistants by virtue of a reportedly inadvertent error of the respondent organization, affirmed by judicial pronouncements. The office of the respondent no.1 should also decide on the appropriate pay scale of the Laboratory Assistants in the backdrop of the abovenoted scenario."

24.

The order in essence is an attempt to remove the anomaly created by the reason of extending the benefit of higher scale of pay to the Laboratory Attendants who are having lesser qualification than the Laboratory Assistants. The said direction cannot be said to be arbitrary or contrary to law. If the Administration has erroneously extended the benefit to the Laboratory Attendants and thereby the Laboratory Attendants are receiving higher or same pay scale of the Laboratory Assistants, the direction to formulate a proposal for incorporating a commensurate pay scale for Laboratory Assistants, if required by amending the recruitment rules, in the light of the observation of the Hon'ble Supreme Court in

West Bengal Registration Service Association (supra) cannot be faulted.

25.

In the aforesaid factual scenario, we are of the view that the Tribunal was justified in giving the aforesaid direction. However, having regard to the fact that the period of six months for the purpose of implementation of the order has expired in the meantime, we extend the period by four months from date. 26.

Since we are not admitting the writ petition and merely extending the period for compliance, we dispense the service of notice upon the respondents. However, this order shall be communicated to the respondents by the writ petitioner within a week from date.

27.

The writ petition stands disposed of in the above terms. However, there shall be no order as to costs. 28.

Urgent photostate certified copy of this order, if applied for, be supplied to the parties upon compliance of usual formalities.

( Soumen Sen, J. ) ( Siddhartha Roy Chowdhury, J. )