JUDGMENT [ENTITY], J.
1. The petitioners are the Sub-Inspectors of Calcutta Police Force in the scale of pay of Rs. 200-350/- with effect from 1st July, 1970 and after their training they have been permanently absorbed in different units of Calcutta Police. Under [ACT] the scale of pay of SubInspector was Rs. 300-600/- and under [ACT] it was fixed at Rs. 300-910/ The grievances of the petitioners are that the State Government extended the benefits of New/Intermediate Selection Grade to eight Sub-Inspectors being respondents Nos. 5 to 12 who were all batch-mates of the petitioners and they were recruited as Sub-Inspectors on the same date as the petitioners. The extension of Selection Grade were given with effect from 21st April, 1981 in the Selection Grade scale of Rs. 560-825/-The names of the said eight private-respondents are set out in paragraph 3 of the writ petition with serial number in Gradation List. It is con tended that according to the Appointment Gazette prepared on the basis of merit in the jtest for recruitment the petitioners are entitled to the Selection Grade earlier than the private-respondents. The result of the extension of the Selection Grade was that the petitioners' basic pay was fixed at Rs. 580/- per month whereas the basic pay of respondents Nos. 5 to 12 was fixed at Rs. 700/- per month giving rise to a discrepancy of Rs. 120/- per month. As a result the total difference in pay has come up to Rs. 300/- per month at present because the basic pay of the petitioners from Rs. 720/- to Rs. 760/- per month whereas the aforesaid respondents are drawing Rs. 910/- per month. It is further stated that the petitioners have only taken 18 years benefit and they have now been put to the scale of Rs. 425-1050/- and no promotions since their appointment have been given to them. According to the petitioners it would be sheer injustice that at the time of retirement the petitioners would have a total difference of pay of around Rs. 1,000/- per month. Several representations were made to respondent No. 2, the Commissioner of Police, Calcutta, for removing the discrepancy and to do justice but all went in vain. It is contended that depriving the petitioners from the New/Intermediate Selection; Grade is wholly illegal and arbitrary and violative of [SECTION] and [SECTION] of the [ACT]. It is further contended that the State Government must remove the discrepancy of pay between the petitioners and the private-respondents mentioned hereinbefore who are similarly situated.
2. The State of West Bengal contested the writ petition and the [ENTITY], the respondent No. 3, affirmed the Affidavit. It is stated that the New/Intermediate Selection Grade Posts was sanctioned by the Government with effect from 1st March, 1974 rank-wise and alloting quota initially 10 per cent and subsequently 15 per cent of each rank. The said Selection Grade Posts were repealed by the [ACT] with effect from 1st April, 1981 and were allotted according to seniority of the Sub-Inspector in the Gradation List. According to the vacancy available for New/Intermediate Selection Grade Posts eight Sub-Inspectors being respondents herein were allotted the said Selection Grade Posts strictly according to their seniority. It is specifically stated that the private-respondents were juniors to the petitioners as per Gradation List. It is further stated that the Gradation List is prepared for particular batch after their training at Barackpore Police Training College according to their performance reports i.e. according to the marks obtained by the candidate belonging to the same batch. It is the case of the State that the petitioners were below the respondents Nos. 5 to 12 in the Gradation List. It is further stated that the petitioners though belonged to the same batch but being juniors in the Gradation List, because of the aforesaid fact, could not avail of the New/Intermediate Selection Grade Posts which were only 10/15 per cent of the total posts of the Sub-Inspectors, It is also denied that Annexure 'A' to the writ petition does not represent the Gradation List. Those are copies of the order indicating the names simplicitor who were appointed temporarily as Sub-Inspectors in the Calcutta Police Force and they would undergo prescribed course of training at the Police Training College, Barack-pore, with effect from the date of appointment. The case of the State is specific to the point that the petitioners cannot claim that they are senior to respondents Nos. 5 to 12 unless their names are posted higher above the names of the private-respondents in the Gradation List which was prepared after their training in the Police Training College which is on the basis of their merit based on the marks obtained. It is clarified in the Affidavit that the Appointment Gazette prepared in the test for recruitment order ceases to have any effect when the Sub-Inspectors come out successful from the Police Training College and the Gradation List is prepared thereafter on the basis of merit in the final examination held in the Police Training College. The two Sub-Inspectors named in the writ petition are also not junior to the petitioners. The Affidavit further states that the Selection Grade Posts carries higher scale of pay than the post of ordinary grade in the cadre of SubInspector since the petitioners could not reach the Selection Grade Post because of limited quota and want of vacancy and as such they are bound to get lower emoluments which is the inevitable consequence. It is strongly denied that there is any illegality or irregularity. It is also stated that though New/Intermediate Selection Grade Posts is not considered as a promotional post though it carries higher scale of pay. It is admitted that the petitioners were deprived of Selection Grade post because of non-availability of such post because of the total strength of the quota of 10 per cent and subsequently 15 per cent of the total strength of the Sub-Inspectors attached to the Calcutta Police. It is further stated that the creation of supernumerary post in Selection Grade is not possible when such posts have been repealed with effect from 1st April, 1981. The Affidavit further states that by the introduction of uniform scale of pay as introduced by the [ACT], the pay of all the then Sub-Inspectors is bound to remain distinctly different. Emphasis is made in the Affidavit on the point that the Indian Police Service and the service of Sub-Inspector of Police, Calcutta, are not considered at par because one is guided by the Rules framed by the Government of India and the other by the Rules framed by the State Government.
3. The learned Advocate appearing for the petitioners submitted that the petitioners as well as the respondents Nos. 5 to 12 were all directly recruited to the post of Sub-Inspectors of Police on 1st April, 1970. On the basis of the Appointment Gazette which was prepared on merit in the test for recruitment the petitioner No. 1 was the seniormost amongst all the direct recruits and some, of the other petitioners were placed in higher position than some of the respondents Nos. 5 to 12. On the basis of the Chart placed before the Court the petitioners were placed at Serial Nos. 529 to 541. The Draft Gradation List shows that the petitioners and the respondents Nos. 5 to 12 were appointed between 1st July, 1970 to 15th September, 1970. From August 1974 the [ACT] was amended and New/Intermediate Selection Grade was incorporated and all Government employees in the scale of Rs. 300/- to Rs. 600/- who were entitled to Selection Grade should have been given New/Intermediate Selection Grade in the scale of Rs. 560/- to 825/-. According to the learned Advocate the eligibility criteria for an admissibility of the New/Intermediate Selection Grade was 10 years in the grade and the percentage of the cadre to whom the said scale was admissible was fixed at 15 per cent. With effect from 21st April, 1981 the respondents Nos. 5 to 12 were given benefit of new/intermediate pay scale of Rs. 560/- to Rs. 825/- and thereafter the New Intermediate pay scale was abolished thus the petitioners of 1971 batch of SubInspectors of Police were denied the protection of pay compared to their fellow batch-mates being respondents Nos. 5 to 12 who joined the service in the same year ; and as an example it was cited that the present effect of granting such selection grade is that the basic pay of the petitioner No. 1 is Rs. 2255/- while that of respondent No. 5 is Rs. 2655/-. The learned Advocate brought in the principle of equal pay for equal work and the principle enshrined under [SECTION] of the [ACT], more so when the petitioners and the private-respondents recruited in the same year and belonging to the same cadre have been discriminated. It is submitted that the New/Intermediate Selection Grade admissible to 15 per cent of the cadre strength could have extended to the petitioners but because it was abolished the petitioners were deprived of the benefit and this will lead to permanent deprivation of the petitioners from their legitimate dues throughout their service career. The contention of the learned Advocate is that the seniority of respondents Nos. 5 to 12 has been fixed on the basis of the date of the joining of Government service and not on the purported, basis of the List forwarded by the Police Training College. It is submitted that the norms of seniority might be a valid consideration for certain purposes including promotion but such norms cannot be applied in an unreasonable manner so as to deprive the petitioners for all time to come of their legitimate dues which similarly situated persons are getting and such a classification would be quite irrational one. It is further submitted that irrespective of classification of junior and senior groups if the same work was done by both the groups the principle of 'equal pay for equal work' is definitely applicable and the petitioner has a strong case on the point. The system of allowing benefit of 15 per cent of the cadre with the New/Intermediate Pay Scale would have given a chance to the petitioners to get the benefit but its discontinues resulted in creating two grounds of the same cadre similarly circumstanced which is not permissible and is in irrational. It is further submitted that even after the abolition of such Rules relating to the benefit of New/Intermediate Selection Grade the State Government on 27th October, 1989 has granted such pay scales to 487 supernumerary Sub-Inspectors with retrospective effect from 1st March, 1974.
4. The learned Advocate on behalf of the respondents Nos. 1 to 4 submitted that the petitioners have challenged the extension of Selection Grade of Sub-Inspectors in the Calcutta Police. The New/Intermediate Selection Grade Posts were sanctioned by the Government with effect from 1st March, 1974 rank-wise initially 10 per cent and subsequently 15 per cent of each rank and it was repealed by the [ACT]. The Selection Grade Posts were allotted to the Sub-Inspectors strictly according to seniority in the Gradation List. It is submited that the petitioners were juniors to respondents Nos. 5 to 12 as per Gradation List and therefore their case could not come within the quota of Selection Grade Posts. The petitioners had been recruited as direct Sub-Inspectors according to [SECTION] of the [ACT], and on appearing before the Selection Board for interview they are required to qualify in written test in Essay Writing in English and General Knowledge. The appointments are made of those candidates included in an approved list prepared on the recommendation of the Selection Board and therefore they are posted to Police Training College at Barackpore with effect from the date of their appointment. It is further stated that the list as enclosed with the written argument of the petitioners does not represent the Gradation List of the petitioners' batch but only shows the temporary appointment for training of Sub-Inspectors. It is argued that the Gradation List is prepared for particular batch after training at the Police Training College according to their performance which is the marks obtained by the candidates belonging to the said batch. As such the petitioners being juniors in the Gradation List could not avail of the Selection Grade Posts which were very limited i.e. 10 per cent and subsequently 15 per cent of the total posts of the Sub-Inspector. It is the procedure that the Gradation List for all future purposes in the case of direct SubInspector is made on the basis of merit of the final examination held in the Police Training College and therefore the Appointment Gazette prepared on merit in test for recruitment ceases to have any effect when those Sub-Inspec-tors come out from Police Training College ; and only thereafter Gradation List is prepared on merit list. It is contended that the Selection Grade Posts carrying higher scale of pay in the same cadre was introduced on quota basis to give relief to the employee when scope for promotion to higher rank was almost nugatory and such posts were allotted as per seniority and Rules framed by the Government. But after the repeal of the quota in the [ACT] there is no further scope for giving relief to the petitioners. It is further submitted that Mr. Justice [ENTITY] by order dated 30th August, 1990 directed the Secretary of Finance Department to consider the individual cases of the petitioners as to whether they should be given benefit of the New/Intermediate Selection Grade and other benefits like the respondents. But the Finance Secretary observed that since New/Intermediate Selection Grade Posts were allotted as per seniority having regard the quota system, the petitioners were not entitled to such posts.
5. I have gone through the facts of the case and carefully scanned the arguments advanced by the parties. It is claimed by the petitioners that Annexure 'A' to the Written Argument of the petitioners is the Draft Gradation List of Permanent Sub-Inspectors of Calcutta Police revised since 1957 and till 1980 but the same is refuted by the State-respondents. According to them it is not the Draft Gradation List of the petitioners' batch but only shows the temporary appointment of trainee Sub-Inspectors. According to the State-respondents the Gradation List is prepared for a particular batch after their training at Barackpore Police Training College according to their performance reports which means the marks obtained by each candidate belonging to the batch according to the method of recruitment of Sub-Inspec-tors not belonging to the Armed Branch. In the Draft Gradation List which was placed before the Court the private-respondents stand from Serial Nos. 519 to 527 whereas the petitioners stand from Serial Nos. 529 to 541 and this was the position till 1971. The main contention of the State-respondents is that New/Intermediate Selection Grade posts were sanctioned by the Government initially 10 per cent and subsequently 15 per cent of each rank and the said Selection Grade posts were repealed by the [ACT] and as such the petitioners could not avail of the quota of Selection Grade posts being juniors to the private-respondents. It is contended by the State-respondents that the Selection Grade posts were allotted to the Sub-Inspectors according to seniority in the Gradation List. It is admitted that 10 per cent and subsequently 15 per cent Selection Grade posts carrying higher scale of pay in the same cadre was introduced on quota basis only to give relief to the cadre where scope for promotion to higher rank was almost nugatory. But such posts were allotted according to seniority and Rules framed by the Government. It is boldly asserted by the State-respondents that the petitioners were deprived of Selection Grade posts because of non-availability of such posts and there was no illegality or irregularity or arbitrariness in alloting the Selection Grade Posts to eligible candidates as per Rules. It is further stated that the Indian Police Service and the service of Sub-Inspector of Police, Calcutta,' are not considered at par because one is guided by the Rules framed by the Government of India and the other by the Rules framed by the State Government.
6. To me it appears that the State-respondents are adopting hide and seek policy to deprive the petitioners of their legitimate and legal dues and to deprive them perpetually from such benefits which will greatly affect their retiring benefits by taking the plea of New/Intermediate Selection Grade posts and the [ACT]. The petitioners are denied the pay scale which their fellow colleagues i.e. private-respondents are getting for performing same, similar and identical duties. The repeal of the [ACT] should not mean that the Sub-Inspectors who could not avail of the Selection Grade posts quota of 10 per cent and subsequently 15 per cent should be permanently deprived of getting the pay scale for similar nature of work and it cannot be imagined that the Government is so powerless as not to redress their legitimate grievances which cannot easily be brushed aside. Here the question is not whether the Draft Gradation List of permanent Sub-Inspectors of Calcutta Police as placed by the petitioners are made on being successful in the training at the Barackpore Police Training College or the Selection Grade posts as per quota system was allotted on merit batch-wise irrespective of the fact that the petitioners belonged to the same batch. But the question is that if the [ACT] would not have been repealed there might have been chances for the petitioners to have higher pay scales but with the repeal of the said Rules such chances vanished for ever and sealed the for tunes of the petitioners, therefore it was certainly the duty of the Government of West Bengal to see that permanent gap should not remain perpetually between the members of the same batch of some Sub-Inspectors of Police of which one group would get higher pay and another group would get lesser pay ; and such discrimination would continue till the retirement of the petitioners thereby causing heavy loss of money to each one of the petitioners in spite of the fact that they would render the same and identical nature of duty as those getting the higher pay scale in the same cadre. According to the well-settled principle by the Supreme Court such discrimination between a group of people with another group who are similarly situated is nothing but sheer discrimination and denial of justice. The method of recruitment of Sub-Inspectors not belonging to the Arm Branch is not very much material when the stage comes after their recruitment and training to take' up for their duties as a regular police force. The petitioners are serving the Calcutta Police since 1970. They have passed almost 22 years of their life in the service of the police and the prize they are getting today is almost a four-figure difference in their emolument from their batch-mates who also entered Calcutta Police along with the petitioners. The cruel joke is being made on the plea that [ACT] is no more alive and as such those who got the New/Intermediate Selection Grade posts under the said Rules would permanently enjoy higher pay than the unfortunate petitioners. Such an absurd policy cannot survive under the [ACT]. If the Government can create New/Intermediate Selection Grade posts of 487 Sub-Inspectors as supernumerary posts as per direction of the Supreme Court in [CASE NUMBER] ([PRECEDENT] as appears from the Calcutta Police Gazette (Supplement) dated 27th October, 1989, then there is no reason why the Government cannot make suitable rules to eradicate the perpetual discrimination between the petitioners and the private-respondents when the door for further New Intermediate Selection Grade posts have closed once for all.
7. "Equal pay for equal work" is well-known principle of law as enunciated by the Supreme Court. It is certainly a constitutional goal if read with [SECTION] and [SECTION] of the [ACT] in the light of the Preamble and [SECTION]. Where all things are equal and all relevant considerations are the same, persons holding identical posts must not be treated differentially in the matter of their pay. The Supreme Court in the case of [PRECEDENT]. said that [SECTION] of the [ACT] enjoins the State not to deny a person equality before the law or the equal protection of the laws and [SECTION] declares that there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. These equality clauses of the [ACT] must mean something to every one. To the vast majority of the people the equality clauses of the [ACT] would mean nothing if they are unconcerned with the work they do and the pay they get. To that the equality clauses will have some substance if equal work means equal pay. The Supreme Court clearly held in this case that construing [SECTION] and [SECTION] in the light of the Preamble and [SECTION], the principle of "equal pay for equal work" is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing different scales of pay do identical work under the same employer. Here I find that after the repeal of the [ACT] there is irrational classification in denying the pay scale to the petitioners at par with the private-respondents which is wholly discriminatory in character. The above case cited related to Delhi Police Force under the Delhi Administration where the drivers of the Delhi Police Force were performing the same functions and duties as the drivers of the Delhi Administration and the Central Government. Another decision of the Supreme Court ([PRECEDENT]) also pointedly held that both senior and junior groups of employees doing same type of work cannot be denied the benefit of equal pay for equal work. This case relates to the promotees but the principle must prevail so far as equality of wages or pay is concerned.
8. I am firmly of the opinion that the Government while dealing with the public or its servants/employees cannot act arbitrarily but its action must be in conformity with some principles which needs the test of reasons and relevance. This doctrine of equality before law flows from [SECTION] and has been well defined in the case of [PRECEDENT] . It is now well-settled that [SECTION] drives at arbitrariness in State action and ensures fairness and equality of treatment. [SECTION] requires that State action must be based on rational and relevant principles which should be non-discriminatory and must not be guided by any extraneous or irrelevant consideration because that would be denial of equality. The principle underlined [SECTION] must characterise every State action whether it be under authority of law or in exercise of executive power (vide [PRECEDENT]), . In the light of the discussion made hereinbefore it is quite clear that the petitioners are performing same and similar duties as the private-respondents Nos. 5 to 12 and there is no earthly reason while there should be any difference of pay scale among the petitioners and the said respondents. Those performing same and identical duties such as the petitioners and the private-respondents must be given equal pay for equal work and this legitimate benefit of the petitioners cannot be withheld on the weak plea of the abolition of New/Intermediate Selection Grade posts. It is the bounden duty of the State-respondents i.e. the Government of West Bengal including its Home (Police) and Finance Departments to equate the pay scale of the petitioners and the private-res-pondents Nos. 5 to 12 at par even by creating supernumerary posts if not unavoidable.
9. In that view of the matter I direct the State-respondents including the Secretaries, of the Home (Police) and the Finance Departments to take immediate steps to put the pay scale of the petitioners and the respondents Nos. 5 to 12 retrospectively with effect from 21st May, 1981 when the respondents Nos. 5 to 12 were given the benefits of the New/Intermediate Selection Grade. If necessary the State-respondents including the Finance Secretary of the Finance Department as well as the Government of West Bengal through the Chief Secretary to the Government of West Bengal are directed to make suitable amendments in the Rules and/or by creating supernumerary posts if essential to provide full, proper and equal service benefits to the petitioners to carry out this order, and there must not be any discrimination in the pay scale of the petitioners and the private-respondents Nos. 5 to 12. The direction made hereinbefore must be implemented by 30th June, 1992.
The Rule is made absolute with the aforesaid direction. There will be no order as to costs.
10. All parties including the Chief Secretary to the Government of West Bengal and the Finance Secretary of the Department of Finance shall act upon the signed copy of the operative portion of this Judgment.