251558of 1987
Under Article 32 of the Constitution of India RK Jain and RP Gupta for the Petitioners
Kapil Sibal RB Misra BB Sawhney RK Mehta NP and Ms A Subhashini for the Respondents
The Judgment of the Court was delivered by SAWANT J
The petitioners in Writ Petition No 25 1 of 1987 are Dairy Mates whereas those in Writ Petition No 558 of 1987 are Junior Plant Operatives and Semi Skilled Opera tives all working with the Delhi Milk Scheme
The first petition is on behalf of about one thousand workers where as the second petition is on behalf of about 280 of work ers
The grievance of the Dairy Mates is that although they perform the duties and functions of semi skilled work ers they have been wrongly classified as un skilled workers and paid salary as such as recommended by the 4th Pay Commission namely Rs750 940 instead of Rs800 1 150 which is the salary recommended to the semiskilled workers
The grievance of the Junior Plant Operatives and Semi Skilled Operatives is that they are actually  doing the work of skilled workers but are classified similarly as unskilled workers and paid salary as such
Both further have a grievance that their counterparts in other departments particularly in Railways have been properly classified and are paid salary accordingly
The petitions were resisted by the respondent Union of India by filing counter affidavits denying the conten tions of the petitioners that their work was of a semi skilled or skilled character as alleged
In view of the disputed questions relating to the nature and functions of the workmen involved this Court by its order of July 29 1988 referred the matter to the Central Govt
Industrial Tribunal cumLabour Court New Delhi to report to the Court on what would be the appropriate pay scales admissible to the concerned workers after looking into the record and giving an opportunity to the parties to produce before it such further material as they may desire to do
Pursuant to the order the Tribunal submitted its report dated October 325 28 1988
It appears from the report that the Tribunal had given opportunities to both the parties to make additional submissions if any and to file further material which they wished to do
Pursuant to the opportunity given the workers in both the petitions produced additional material and evidence
The respondent Union of India however did not produce any further material or evidence
On the basis of the material which was already on record and the further material produced before it the Tribunal made its report
The relevant portions of the report may be reproduced here under 3
There are 4 categories of workmen in the DMS viz Dairy Mates DM Junior Plant Operatives JPO Semi Skilled Operatives SSO and Skilled Operatives SO
The deploy ment registers of the various units read with the evidence of Shri Lajpat Rai Saxena Dairy Supervisor conclusively prove that the var ious categories of workmen are performing similar duties and their positions are inter changeable with the result that there is no clear demarcation as to what function is to be performed by which category of workmen
Shri Lajpat Rai Saxena has clearly stated that the nature of duties and the degree or skill of SO SSO and JPOs and DMs is almost same and that sometimes the work done by SSOs is performed by SO and JPOs subject to the availability of the category of work men
To a question by this Tribunal he replied that if an SO is available he will be posted as an SO only but when no SO is available then SSO is put in his place and sometimes JPOs and Dairy Mates may be put to work in his place
He further stated that generally there is a shortage of SOs and then they have to put other categories of workmen in their places
The position is fully borne out by the various deployment registers    4   
The position of deployment of the various categories of workmen clearly goes to show that their duties are inter changeable without any consideration for their gradesdesignations
The position obtaining on the ground clearly repells the contentions of the respondents contained in affidavit of Shri KG Krishnamurty that the functions of the various categories of workmen are distinct and separate
The respondents have not been able to produce any document in support of their contention to show that the duties of the various categories of workmen as enumerated in the affidavit of Shri KG Krishnamurty 326 were even published or actually followed
On the other hand Shri Lajpat Rai Saxena has stated that since the time he joined service in the year 1972 he had not come across any roster of duties for the different categories of workers such as SO SSO JPOs and Mates and no such roster had been issued after 1972
He had heard that there was a roster of duties issued prior to his joining of service but he had not seen any such roster
It would thus appear that if there was any such roster prior to 1972 it got into disuse and was never enforced 5 The nature of functions performed by various workmen shows that they require a good degree of skill
In other words the functions can be performed only by skilled and semi skilled workers and not by unskilled workers
Shri Lajpat Rai Saxena has stated that there are 5 milk pasteurisers and 2 cream pasteuris ers in the plant unit of Process Section
There are also two chillers in RSM There are 13 machines in the product section
All these machines can be operated only by skilled workers
He further stated that the bottle filling plant is automatic and the entire working is also automatic
They have got a separate pest control section for cleaning and sweeping
Sweepers of Pest Control Section are not used for cleaning machines which is done only by the SO SSOs JPOs and Dairy Mates
This further goes to show that even the clean ing of machines requires skill and the job cannot be performed by unskilled workers
Even the Management of DMS recognises that the duties performed by the mates and junior plant operatives who have been clubbed with the unskilled category of peons chowkidars etc are much more onerous in nature and they deserve a better deal see the letter dated 4 9 86 addressed by the Chairman DMS to the Joint Secretary Ministry of Agriculture
The first petitioners have placed on record a photo copy of the identity card issued to the mates page 110 Vol 1 which shows that the D Mates were being treated as Technical Personnel for the purpose of issue of identity cards
The job cards annexures 1 to 6 Vol II further go to show that the mates have been performing skilledsemi skilled duties such as repairing of Driver seats vulcanising of punctures other repairs of vehicles and servicing
All these jobs could not have been done by unskilled workers
Under the circum stances I have no hesitation in holding that the 327 mates and junior plant operatives have been unfairly treated by the 4th Pay Commission by giving them lowest pay scale of unskilled category of workmen like peons sweepers chowkidars etc
This category of workmen difinitely deserves to be given a higher grade than the lowest meant for unskilled category of workmen
While it may be conceded that due to the diffuse nature of duties the Dairy Mates and Junior Plant Operatives of DMS cannot be compared with the Gangmates in the Railways yet the case of the Dairy Mates and Junior Plant Operatives of the DMS has intrin sic merit
No doubt the workmen categorised as semi skilled SSOs at present are carrying out the functions of Skilled Operatives SOs frequently yet so are the Mates and JPOs
However all the workmen cannot be given the grade of SOs because the considerations of career planning and promotions etc
have to be kept in view
Already it is being represented that the various categories of workmen are stagnating in their respective grades for the last 20 25 years
The same complaint will arise afterwards if all the workmen are given the grades of SO at the same time
It also militates against the principles of sound administration because there will be double jumping of grades in some category of workmen
It will also not be desirable to create any fresh scales of pay as it would run counter to the recommendations of the pay commission which has reduced the number of pay scales prevailing previously
 6 Taking into consideration all the facts and circumstances it is recommended that the Mates and JPOs may be given the pay scale of Rs800 1150 and semi skilled operatives may be given the scale of Rs825 1200
The grades as provided by the 4th Pay Commission and those now recommended by this Tribunal will compare as under S1
No Category of workmen Pay Scale Pay Scale recommended by recommended 4th Pay by this Commission Tribunal 1
Skilled Operatives SO 950 1150 950 1400 2
Semi Skilled Operatives 800 1150 825 1200 SSO 3
MatesJPOs 750 940 800 1150
 328 5
While the workmen accepted the report arguments were advanced on behalf of the respondent mainly criticising the report with regard to the pay scales recommended to the Mates deployed in Transport Distribution Section
It was contended that the Mates working in the said section consti tuted 60 of the total number of Mates deployed in the different units of the Scheme and their work merely con sisted of loading and unloading of the crates
That work by no stretch of imagination could be described as other than unskilled
It was therefore wrong to give them a scale different from that admissible to the unskilled workers
This contention ignores the admitted fact that Mates from one Unit are transferable to another at any time and when so transferred they do the work of the Units to which they are transferred without any additional remuneration
What is more as is stated in the report there is no roster of duties and functions of the Mates in any Unit and all Mates have to do the work of the Units to which they are assigned on any particular day
The mates have thus to be versatile with the work in all the Units both unskilled and semi skilled
This is certainly not the case with the Sweepers Chowkidars and Malis who are categorised as unskilled work ers
This being the case we do not see any merit in the contention that the Mates should be treated on par with the unskilled workers
There was no contention raised on the report with regard to the mates working in the other Units or with regard to the Junior Plant Operatives and Semi Skilled Operatives
In the circumstances we accept the report and direct the respondent to pay to the workers the pay scales recom mended in the report which are as follows A Mates and Junior Plant Operatives Rs800 1 150 B Semi Skilled Operatives Rs825 1200 8
The above pay scales should come into effect from 1st January 1990
It is made clear that none of the workers ie Mates Junior Plant Operatives and Semi Skilled Operatives will refuse to do any part of the work which is assigned to them at present merely because they are hereby given the above pay scales
Writ Petitions are allowed accordingly
The parties to bear their own costs
RNJ Petitions allowed


Summary:
Paragraph 516 B of the Punjab Jail Manual provides for premature release of prisoners and is in the nature of executive instructions
The State Government modified the instructions in 1971 and 1976
The 1976 instruction was to the effect that cases of life convicts whose sentence has been commuted should be considered for premature release only after completion of 14 years of actual imprisonment
The State Government further liberalised its policy and decided that such cases might be reviewed by a state level committee and directed that cases of life convicts who have completed 8 12 years substantive sentence and sentence of 1410 years including remission be submitted to the Commit tee
Later on the State Government clarified that the lib eralised policy would not be applicable to the life convicts whose death sentence has been commuted to life imprisonment
In 1978 the Code of Criminal Procedure 1973 was amended introducing section 433A providing that such life convicts should undergo actual imprisonment of 14 years in jail
This Court declared that section 433A of the Code is prospective in effect and did not operate against those cases which were decided by the trial court before 18121978 Maru Ram etc
vs Union of India and Anr
  The cases of respondents were in fact covered by the said decision
432 They have filed writ petitions before the High Court for premature release and the High Court directed the State Government to consider their cases
The State Government has preferred these appeals by special leave against the orders of the High Court
Dismissing the appeals this Court HELD 11
No one has got a vested right to claim pre mature release on the ground that he has suffered the mini mum actual imprisonment as prescribed under section 433A Cr
PC because a sentence of imprisonment for life  is incarceration until death that is for the remaining period of convicted person s actual life
There is no question of releasing such a lifer early in the absence of an order of commutation under section 55 IPC by the appropriate Govern ment or under section 433b of Criminal Procedure Code of 1973 by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitu tion of India
435E F G H 12
In the instant case the conviction of the respond ents was recorded early to the introduction of section 433A and therefore as per the ratio laid down in Maru Ram s case the two respondents are entitled for consideration of release by the appropriate Government as per the prevailing rules or executive instructions
Further admittedly the State Government did not take up the cases of the respond ents for premature release within six months of the order of this Court dated 10th December 1980 in Sant Ram s case WP Nos
1252 6480 etc
etc and deferred the considera tion of premature release till the respondents had completed 14 years of substantive sentence
It has become obligatory for the State to consider the cases of premature release of the respondents in accordance with the rules or executive instructions prevailing and applicable to them at the rele vant time ie between the period 10121980 and 961981
The plea of the appellant that the premature release of the respondents was not considered since they have not completed 14 years of substantive imprisonment is in violation of the directions of the order dated 10th December 1980 of this Court and so the appellant cannot be permitted to make such a plea on the strength of the executive instructions over looking and ignoring the above directions
There is no infirmity in the judgments of the High Court calling for interference
436E F 437F 438H 439A C Kishori Lal vs Emperor AIR 1945 PC 64 Gopal Vinayak Godse vs The State of Maharashtra and Others   Maru Ram etc
vs Union of India  Anr
   Kartar Singh and 433 Others vs State of Haryana  and Sadhu Singh vs State of Punjab   relied on