‘ I ‘ ‘ W HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench: Hon’ble Shri Manindra Muhan ShrivastaVa, J. ’ ' —_ W. P. No.2541J1991 PETITIONER: D. P. Saraf Versus RESPONDENTS: Chief General Manager. South Eastern Coal Fields Ltd., Korba East, District Biiaspur and Others Present: Petitioner in person. Shri P. S. Koshy, counsel for the respendents. ORDER(0RAL) (Passed o_n 17‘“ of August, 201 O} By this petition, the petitioner has claimed following reiief:~ (A) That the petitioner be granted same pay scale as that of the Store Keeper With effect from 10114985 i.e. the date mm which he is officiating as Store Keeper. That‘the petitioner be granted promotion tothe post of Store Keeper; (C) Applying the principle of “equal pay for equal work", as the petitioner, a Assistant Store Keeper is performing similar duties as Store Keeper, petitioner is entitled to pay scale of Rs.1222-2230/- with effect from the date when the petitioner is officiating as Store Keeper i.e.10-1 1-1985. r (2) I Case of the petitioner is that he was initially appointed as Assistant Store Keeper on 27-01-1Q84 in the Regional Stores Office, S.E.C.L., Korba. in the year 1985, the petitioner was given the charge of the Store by the outgoing Store keeper. The service record of the petitioner is unblemish and is without- departmental enquiry or punishment. A departmental promotion committee was convened on 13404990 and based on the recommendations; an order of S‘V 13-1 0-1 990 (Annexure P-i), but the petitioner was not promoticn was issued on m the cause title of the petition on account of hiS death) was granted promotion. The petitioner t and as lat Keeper. as he was offieiating as Store The first submieeion of the petitioner is that Keeper with effect from Petitioner refers to Annexure P- pmmoted and one Lekhram (who was eariier impleaded as respondent Nb.3, but tatet on deteted fro 10-1 990 hen preferred repreeentation on 25- e as on 08-68-1991. the petitioner has been promoted a5 Store (3) 10'1 1-1985, he is entitled to pay scaie of $tore Keeper. XVI which is.a oertifieate of handing over of ‘ charge of the Stores by the outgomg Store Keeper Shri S C. Gope to the 985. The second submission of the petitioner is petitioner performed on 10-11—1 he Assrstant Store Keeper as welt as the Store Keeper performed the s as refieoted from provrsrons contained in Para 2.8 of that as t similar duties and function the Store Manual (Annexure P-iii) petitioner is entitled to the same pay scaie, given to the Store the petitioner is that respondent s Assrstant Store Keeper which is being though working a s have Keeper. The third submission of committed gross iiiegaiity in considering the case of Lekhram for promotion as he was Magazine Clerk posted in the Magazine Section under the Mines, and 'ssion of the petitioner is that othervi/rs therefore, he could not be considered for promotion to the post of Store Keeper. ‘ e also, no reservation in me Affairs n 08—11-1963 to all the Ministries, placed on record as Annexure P-V. sion of learned counsel for the respondents is ner was never given any officiating appointment on the post of Store ch is Annexure P-XVI only shows that the petitioner The last submr promotion could be granted in View of the circuiar of the Minfstry of Ho issued o r r (4) On the other hand, submis that petitio Keeper The certificate whi as handed over the charge of Stores by the outgoing Store Keeper which does i, not tantamount to give officiating appointment to the petitioner on the post of Store Keeper. Further submission of learned counsei for the respondents is that the petitioner beiongs to a lower post of Assistant Store Keeper and the post of Store Keeper is promotional post under t padre scheme placed on record as a he Annexure l-. A ln the absence of any chalenge l to the cadre sceme h by the r petitioner, he could not claim equal pay for equal work, as two posts could not be equated. one being a promotional post of the other. Learne counsel for the d respodents further submits that s far as consideration o Lekhram is n a f concerned, Lekhr was given proforma promotion as Assistant Store Keeper am vide order dated 02-05-1989 as stated by the petitioner himself. The said order though within the notice and knowledge; was never chllenge by the petitioner. ad Referring to the notice under the cadre scheme of Annexure LA; it i also s subitted that the employees working in the Magazine Section will be treated as employees n the cadre of Stores. Replying to the arguments based on reservation, learned counsel for the espondents submitted that though in the ‘ year 1963, there were instrtions not to provide any reservation in promotion, uc butlater on, vide memo dated 09-05-199 (Annexure R-6), Government of India, 8 Ministry o industry directed reservation to be made in the promotion. The f aforesaid instructions were in continuation earlier circulars issued on arious of v dates, which have been placed o record as Annexure R-7, R-S, R-S wich n h provided not only for reservation but also the manner in which such reservations were to be worked out by applying the roster system. (5) ln so far as claim of the petitioner for grant of higher pay scale of Store *’ Keeper on the basis of alleged officiation on the higher post is concerned, l do l not find any material on record to come to the conclusion that the petitioner was ever given ofdciating appointment on the post of Store Keeper. Respondents have taken a very categorical stand in the return that the petitioner was never m i r given any officiating or ln charge appointment n the post of Store Keeper. The only document on the basis of which, petioner seeks to sustain his claim is certificate of handing over of charge Annexure P-XVI. i am afraid, the same cannot be treated as an order of omciating appointment or even current charge of appointment of the petitioner on the post of Store Keeper. The said rtificate indicates that the outgoing Store Keeper had handed over the charge of Store to the petitioner. Therefore, the petitioner's claim for higher pay scaie of Ste or Keer on the asis of alleged officiang appointment canno be sustained in pe b ti t taw. (6) in so far as chailenge to the promotion of Lekhram is concerned it was within the knowledge f the petitioner as is reflected from his own pleading in the o rejoinder that Lekhram was given roforma promotion as Assistant Store Keeper p vide order dated 02-05-1989 with effect from 01 -03-1 984. This is also reflected from the minutes D.P.C. which have been placed on record by the respondents wherein the said Lekhram has been shown to be appointed as Assistant Store .Keeper with efect from 01-03-1984. Petitioner having not f chllenged te order of proforma promotion of Lekhra, though having a h m knowldge of the same, challenge to his further promotion s Store Keeper on e a that ground cannot be sustained in law. lt needs to be emphasized that under the cadre scheme Annexure l-A tiled by the petitioner, employees working in Magazine Section have to be treated as belonging to the cadre of Stores. Therefore, it is difficult to accept the contention of the petitioner that Lekhram belonged to a different cadre at the time of consideration for promotion to the post of Store Keeper. (?) The issue with regard to the legality of reservation in promotion, in the factual background of the present petition, does not require much consideration. o ti ce , of Petiioner has assaie reservation of the post of ore Keeper i the matter of promotion soieiy n the pading that the same was contrar to nes 1963 (Annexure P-V). A perusal of the documets tiled by the respondents, placed o record as AnneXure P-6, P-7, P-8 and P-9 would at once disclose that i x later on. the scheme of servation in promotion was not only introduced but its there was a detailed policy to implement the same in various cadres also providing the roster. Ding the course of submission, the petitioner made submision with regard to very constitutionality of reservation in promotio with reference to the constitutional provisions as contained in Article 16 of the Constitution of lndia. This Court is not inclined to o int that aspect, in the present case, as the challenge to promotion is not based on ny such foundation‘ led in the pleadings of the petitioer. t ld St n o ie y guideli/instructionsof the Government of India vide his circUiar dated 08-1 1- (8) Petitioner's claim for qual pay or equa work is mainly based on the submissin that though thre is different nomenclature in the name of the Store Keeper ad the Assitant Stor Keeper, in fact and substance, the duties and n s e function of the. Stor Keeper and the Asistant Store Keeper are one and the same. A reference to the duties and function of the Store Keeper and the Assistant Store Keeper has been made in he Stores Manual, whic has be placed on record as Annexure P-lll. Clause 2.8(b) contains the duties of the Store Keeper and the Assistant Store Keeper both. lt cannot be disputed that the duties and function of the Store Keeper and the Assistant Store Keeper are similar. However, in order to sustain the claim of equai pay for equal work, complete identity in ail respects is sine qua non. (9) The petitioner relies upon the decision ofthe Supreme Court in the case of P. Savita and others vs. Union of India and others, A.I.R. 1985, S.C. 1124. n n re ur s n g o a n e f l o e e s t h en That was a case where the Supreme Court was dealing with equivalence of two different posts and one was not the promotiona! post of the other. In fact, white considering the ciaim for equal pay for equal work, the Supreme Court reiying upon its earlier decision, held:- “13. This Court however observed that a differential treatment In appropriate cases can he justified when there are two grades based on reasonable grounds and stated as follows (at p 881 of AIR) lt is well known that there can be and there are different grades in a service with varying dualrftcatlons for entry into a partrcutar grade the higher grade often being a promotlon avenue for offcers of the lower grade. The higher qualrfcauons for the higher grade, which may be either academic qualifications or experience based on length of service reasonably sustain the classification of the offcers into two grades with different scales of pay The prinorple of equal pay for equal work wouid be an abstract doctrine not attracting Article 14 if sought to be apptieol to them? Thus‘ the higher qualmcations for the higher grade, whioh may be either academic qualifications or experience based .on.length of service reasonably sustain the classification of the officers into two grades with different scales of pay In the present case it is not in dispute that under cadre scheme the post of 5tore Keeper is a promotional post and the pest of Assistant Store Keeper constitutes the feeder post. An employee hoiding the post of Assistant Store Keeper with minimum three years of experience atone could be considered for promotion to the next higher post of Store Keeper. Therefore, there exists a clear distinction between the two posts and the claim of the petitioner cannot be sustained in the eye of law Reliance on the deciSion of the High Court of Madhya Pradesh in the case of Ashok Kumar s/o Bhanwarlalji vs Industrial Court Indore and Others 1988 MP L J 729 is also misplaced inasmuch as in that case, the Court considered equivaience of the two posts without there being any situation that one was the promotional post of the other. Therefore, in the considered opinion of thie Court, the said judgment is of no help to the petitioner. This Court in the case of M.R.K. Khakhar and others vs. State of MP. and others, (W.P.(S)No.2304 of 2005) decided on 30-07-2010, has considered the legal position in the matter of ciaim for equal pay for equal work and relying upon the decisions of the Supreme Court in several cases; it has been held:- 6. ln the case of State of Madhya Pradesh and others v. Ramesh Chandra Bajpai, (2009) 13 SCC 635, the principle laid down in the aforesaid were reiterated by the Supreme Court and it was held that similarity in designation or nature of quantum of work is not determinative for equality in the matter of pay scales, The Court has to consider the facts like source and mode of recruitmentlqualifications, nature of Work, value thereof, reliability, experience, confidentiality, functional need etc. and equality clause to invoke in the matter of pay scales only when there is wholesale identity between the holders of two posts. (10) ln View of the aforesaid discussion, I am not inclined to accept the submission of the petitioner that the petitioner in his capacity as Assistant Store Keeper is entitled to the same pay scale which was granted to Store Keepers (11) In the return. the respondents have stated that the petitioner’s case for promotion was considered as he was within the zone of consideration and against 12 available vacancies, two posts were reserved i.e. one for S.C. and one for $.T. Against remaining 13 vacancies, eligible Assistant Store Keepers were considered and found fit for promotion were all senior to the petitioner. (1 2) In the aforesaid backdrop of submissions made by learned counsel for the parties and discussed by this Court, relief prayed for by the petitioner, cannot be granted to him, under the law. (13) Befere parting with the case, the petitioner made a submiSSion that the respondents may be directed to consider his representation for equivalence and grant of equal pay scale in view of the fact that’there functions are similar. No such directions can be issued by this Court However, in future, if the respondents draw equivalence, it would be open for the respondents to consider ali these aspects. (14) With the aforesaid observation, the petition is dismissed. , _ "Ed‘? V" i ,\ Manindra Mohan Shrivastavaii ’i ‘ Judge ' ”Tsar a