WP(C) 3756/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) 1. The petitioners numbering 21 have filed this writ petition with the foll owing prayer: i. To issue a writ in the nature of certiorari and/or any other writ order or d irection of like nature, towards setting aside and quashing of the Dte. GBR’s No te No. 18368/6th CPC/DGRB/T&C dated 22.01.2009, the order bearing No. BRDB/03/19 1/2007 GE-I dated 21.05.2009, Ministry of Finance, Department of Expenditure UO No. 7.39/2/2009-IC dated 13.05.2009 and Ministry of Defence, Finance Branch ID N o. 1(1) BRS/2009/768 dated 19.05.2009 towards granting a higher scale of pay to the diploma holder Charge Mechanic than the non diploma holder Charge Mechanic in the Border Roads Organisation, without there being any reasonable basis for s uch discrimination. ii. To issue a writ in the nature of mandamus and/or any other writ order or dir ection of like nature directing the respondent authorities to grant to the petit ioners the scale of pay enjoyed by the Diploma Holder Charge Mechanics, i.e. Rs. 9300-34800/- + Grade Pay of Rs. 4200/- w.e.f. 01.01.2006, i.e. the date on whic h the diploma holder Charge Mechanics were granted the said scale of pay, with a ll consequential benefits including arrear salary, increment etc. 2. The petitioners are the employees of Border Roads Organisation (BRO) und er the Ministry of Shipping & Road Transport and Highways, holding the post of C harge Mechanic. They were initially appointed as Vehicle Mechanic, Welder, Turne r and Electrician during the period from 1981 to 1994. They have been promoted t o the post of Charge Mechanic which post they are presently holding. 3. The service conditions of the petitioners are governed by the Rules call ed General Reserve Engineering Force Group-C and Group-D Recruitment Rules, 1982 . As per the provision of the said Rules, there are two modes of recruitment for entry into the cadre of Charge Mechanic which are direct recruitment and promo tion from the feeder grade of Vehicle Mechanic, Welder, Turner, Electrician etc. As per the said Rules, the essential qualification for entry into the cadre of Charge Mechanic by direct recruitment or by promotion is either recognized thre e years diploma in Mechanical/ Automobile Engineering or Matriculate or equivale nt with ITI/ITC/NCTVT/Defence Trade certificate, passed successfully Class-I cou rse of Vehicle Mechanic (Electrical and Mechanical Engineering), as laid down in Defence Service Regulation, Qualification Regulation for Soldiers with three ye ars experience in recognised Workshop dealing with repairs of Mechanical Equipme nts. The scale of pay prescribed for the post of Charge Mechanic is Rs. 380- 560 /- (pre-revised) and there is no distinction in the pay scale for diploma holder and holders of alternative qualification prescribed in the Rules. The petitione rs posses alternative qualification on the basis of which they have all been pro moted to the post of Charge Mechanic. 4. There is no dispute that the petitioners being in the cadre of Charge Me chanic by virtue of their promotion to the said cadre, discharge the same duty a nd responsibility and also enjoy the same status as that of the diploma holders Charge Mechanic. 5. The grievance of the petitioners in the matter of scale of pay emerged w hen by Annexure -2 communication dated 21.05.09 issued by the Govt. of India in the Ministry of Shipping & Road Transport and Highways, Border Roads Development Board under the signature of Under Secretary conveyed to the Director General, Border Roads it was conveyed that in pursuance of the recommendation of the 6t h CPC the pay scale for diploma holder Charge Mechanic and diploma holder Charge Electrician in Boarder Roads Organisation should be upgraded from Rs. 4000-6000 /- (pre-revised) to Rs. 5000-8000/- (pre-revised) w.e.f. 01.01.1996 for the purp ose of pay fixation only with actual benefits from 01.01.2006 to the exclusion o f the petitioners. By the said communication, the benefit of upgradation in the pay scale was provided only to the Charge Mechanic possessing diploma to the exc lusion of the Charge Mechanic possessing the alternative qualification as prescr ibed in the recruitment rules mentioned above. 6. By Annexure-3 letter dated 13.05.09, a proposal was sent for upgradation of basic scale of pay of Rs. 5000-8000/- (pre-revised) to that of Rs. 9300 -348 00/- with grade pay of Rs. 4200/- in respect of the categories stated to be simi larly placed and carrying minimum qualification of three years diploma in Engine ering. The categories mentioned in the communication included the category of Ch arge Mechanic. While endorsing the said communication to the Director General, B oarder Roads, it was stated thus: Please forward the authorization of posts in each cadre, i.e. posts where minim um entry level qualification for direct recruitment is three years diploma in En gineering or equivalent as per R & P Rules, 1982 and a copy of relevant Recruitm ent & Promotion Rules to this Dte for initiation of the case to Sectt BRDB . 7. The grievance of the petitioner will necessarily require to refer to the relevant portion of the report of the 6th CPC which the petitioners have annexe d to the writ petition as Annexure-5. For a ready reference the said operative p ortion is quoted below: Border Roads Organisation Overseer (Civil) : 7.39.22 Higher pay scale has been demanded for the post or Overseer (Civil) in Border Roads Organisation on the ground that the minimum qualification for the post is Diploma in Engineering. The post carries minimum d irect recruitment qualification of Diploma in engineering. Theses minimum qualif ications had been prescribed in 1996. Fifth CPC, in their Report sucmitted in 19 97, had recommended the scale of Rs. 5000-8000/- for all posts carrying minimum direct recruitment qualifications of Diploma in Engineering. This recommendation was accepted. The post should consequently have been extended the scale of Rs. 5000-8000/- w.e.f. 01.01.1996. This was, however, not done. The Commission, acco rdingly, recommends that the post of Overseer may be upgraded and merged with th eir promotional post of Superintendent BR Grade-II (present scale of Rs. 4500-70 00/-) and the combined cadre extended the scale of Rs. 5000-8000/-. Since the Co mmission has recommended merger of the scales of Rs. 5000-8000/-, Rs. 5500-9000/ - and Rs. 6500-10500/-, the post will be placed in the revised Pay Band PB-2 of Rs. 8700-34800/- along with a grade pay of Rs. 4200/-. Commission also advises t he Government to implement this retrospectively from 01.01.1996, at least for th e purposes of fixation of pay. Superintendent Grade-II 07.39.23 The post of Superintendent Grade-II in the Civil Engineering and Electr ical & Mechanical Cadre has been extended the pay scale of Rs. 4500-7000/- even though the minimum qualifications of direct recruitment include diploma in Engin eering. Fifth CPC had recommended placement of all posts requiring minimum entry level qualification for direct recruitment of Diploma in Engineering as Rs. 500 0-8000/-. Even though the recommendation was accepted by the Government, it has not been extended in respect of this post because only some of the posts are fil led through direct recruitment. This is not for the correct interpretation of Fi fth CPC recommendation as per which all posts carrying minimum qualification of Diploma in Engineering for DRs had to be placed in the scale of Rs. 5000-8000/-. The post of Superintendent Grade-II has an element of direct recruitment, minim um qualifications for which is Diploma in Engineering. The Commission, according ly, recommends that the post of Superintendent Grade-II may be placed in the Pay Band-2 of Rs. 8700-34800/- alongwith a grade pay of Rs. 4200/- corresponding to the pre-revised scale of Rs. 5000-8000 that is now being merged with the scales of Rs. 5500-9000/- and Rs. 6500- 10500. Other posts similarly placed and carryi ng minimum qualification of diploma in Engineering should also be extended this pay scale. 8. According to Mr. Nair, learned counsel for the petitioners, the aforesai d recommendation of the 6th CPC coupled with earlier recommendation of the 5th C PC which had already been taken due note by the 6th CPC, there cannot be any dis tinction in the matter of scale of pay in the cadre of Charge Mechanic irrespect ive of whether the incumbent is a diploma holder or holder of the alternative qu alification for entry into the cadre. He submits that the instant case is square ly covered by the judgment and order dated 10.09.2010 passed by this Court in W. P.(C) No. 51/2009 (GS-161752 OVRS, Ghan Shyam Vishwakarma vs. The Director Gener al, Border Roads Organisation and ors.). He has also referred to the decision of this Court reported in 2003 3 GLT 421 (All Assam Fishery Officials Technical As sociation vs. State of Assam and ors.) to buttress his argument that there being no distinction in duties, responsibilities and status between the two categorie s, i.e. diploma holder Charge Mechanic and alternative qualification holder Char ge Mechanic, the petitioners cannot be deprived of higher pay scale provided to the diploma holders. 9. Mr. Chokraborty, learned CGSC on the other hand referring to the stand o f the respondents in their counter affidavit, has submitted that the recommendat ion made by the 6th CPC being confined to only diploma holders, no other interpr etation can be brought to the said recommendation so as to claim that even non d iploma holders are also entitled to same pay scale admissible to the diploma hol der Charge Mechanic. He has specifically referred to the stand of the respondent s in their affidavit filed on 08.10.2010 in which it has been stated that before implementation of the 6th CPC, pay scale for non diploma holders as well as dip loma holders in the grade of Charge Mechanic was Rs. 4000-6000/-, but as per the recommendation of the 6th CPC the pay scale in respect of diploma holders has b een placed in the pay scale of Rs. 5000-8000/- (pre-revised). According to the s aid affidavit since the petitioners are non diploma holders and have been promo ted to the cadre of Charge Mechanic, they are entitled to such upgraded scale of pay. 10. I have given my anxious consideration to the submissions made by the lea rned counsel for the parties and the materials available on record. The relevant recommendation made by the 6th CPC has been quoted above. Dealing with the post of Overseer (Civil) in the BRO, the 6th CPC has noted the minimum direct recrui tment qualification for the post of Overseer (Civil). Referring to the recommend ation of the 5th CPC in their report submitted, in 1997 by which a recommendatio n was made for the scale of pay of Rs. 5000-8000/- for all posts carrying minimu m direct recruitment qualification diploma in Engineering which was accepted, it was recorded that consequential action was not taken. Accordingly, it was reco mmended that the post of Overseer should be upgraded and merged with their promo tional post of Superintendent (Br.) Grade-II and the combined cadre be the exten ded scale of pay is Rs. 5000-8000/-. 11. Dealing with the cadre of Superintendent Grade-II, the 6th CPC also note d that the said post in the Civil Engineering and Electrical & Mechanical cadre have been extended the pay scale of Rs. 4500-7000/-, even though the minimum qua lification for direct recruitment included diploma in Engineering. Noticing the recommendation of the 5th CPC for placement of all posts requiring minimum entry level qualification for direct recruitment of diploma Engineering as Rs. 5000-8 000/, it was also noticed that even though the recommendation was accepted by th e Govt., but the same had been extended in respect of the posts because only som e of the posts are filed through direct recruitment. It was categorically stated that such an interpretation was not correct interpretation of the 5th CPC reco mmendation as per which all posts carrying minimum qualification requiring diplo ma in Engineering for direct recruitment had to be placed in the scale of pay of Rs. 5000-8000/-. Significantly it was noted that the post of Superintendent Gra de-II has an element of direct recruitment minimum qualification for which is di ploma in Engineering. 12. Nowhere in the aforesaid recommendation the category of employees posses sing alternative qualification has been excluded from the purview of upgradation to the said pay scale. Due emphasis was given on the post and not in the incu mbents concerned. Further, what has been emphasised is that such upgradation sho uld be provided to where there is element of direct recruitment of the incumbent s possessing diploma in Engineering. The recruitment rules itself provides alte rnative qualification which the petitioners do posses. Any interpretation other than the plain and unambiguous meaning effected in the said recommendation will amount to giving an different meaning to the said recommendation. 13. It is in the above context, this Court in GS-161752 OVRS, Ghan Shyam Vis hwakarma (supra) has made the following observations: 14. Keeping in view of the above decisions of the Apex Court regarding construc tion or/interpretation of statute/rules and accepted principles of interpretatio n of statute or /rules this Court has given careful and anxious consideration of mind for interpretation of the said para 7.39.22 of the report of the 6th Centr al Pay Commission, which has been accepted by the Government of India. On bare p erusal of the said para 7.39.22 of the report, it is crystal clear that the reco mmendation of the revision of pay at Rs. 5000-8000/- is for the post of Overseer , for which minimum qualification for direct recruitment is diploma w.e.f. 01.11 .1996; and that the recommendation of the revision of pay is not with reference to the incumbents for the post of Overseer, for which minimum qualification for direct recruitment is diploma holder. 15. As stated above, admittedly in the present case, under the existing Recruitm ent Rules, 1996 the post of Overseer is to be filled up 80% by direct recruitmen t and minimum qualification for direct recruitment is diploma in engineering and remaining 20% are to be filled dup by promotion from amongst the Mason and Carp enters who are matriculate and passed the trade test examination with three year s regular service. For the sake of repetition it is reiterated that on bare peru sal of para 07.39.22 of the 6th Central Pay Commission, it is clear that the Com mission recommended that the post of Overseer may be upgraded and merged with t heir promotional posts of Superintendent GR-II (present scale of Rs. 4500-7000/- ) and combined cadre extending the scale of Rs. 5000-8000/- and the post will be placed in the revised pay band PB-2 of Rs. 8700-34800/- along with a grade pay of Rs. 4200/-. In nowhere of the said recommendation, i.e. para 7.39.22 of the 6th Cent ral Pay Commission it is mentioned that promotee of the post of Overseer having no qualification of diploma in engineering shall not be allowed to enjoy the rev ised pay scale, i.e. Rs. 5000-8000/- for the post of Overseer, for which minimum qualification for direct recruitment is diploma holder. 16. One shold not mix up with the qualification of diploma mentioned in the said para 7.39.22 of the recommendation of the 6th Central Pay Commission while revising the pay scale of the incumbents of the post of Overseer inasmuch as min imum qualification of diploma mentioned in the said para is only for qualifying the post of Overseer. As discussed above, the authority cannot add words to the said para or read words into it which are not there, especially when the litera l reading of the said para produces an intelligible result. According to the maxim Espressum facit cessare tacitum which has been discussed above, when there is an expression mentioned of certain things, then a nything not mentioned is excluded. Therefore, the irresistible conclusion in the present case is that the revision of pay scale of the incumbent of the post of Overseer by interpreting the said para 07.39.22 of the recommendation as if it r eferred to the incumbents and not to the post, i.e. Overseer, is not at all acce ptable inasmuch as the respondents have misunderstood the principles of interpr etation of statute and the maxim Espressum facit cessare tacitum while underst anding the said para 7.39.22 of the recommendation of the 6th Central Pay Commis sion. 14. In the aforesaid decision as in the instant case, the Court was confront ed with the interpretation of the aforesaid recommendation made by the 6th CPC. The concluding para of the said judgment reads as follows: 21. It is well settled law that when Executive instruction conflicts with the statutory provision the latter will prevail. In the absence of any conflict both will prevail. Ref: (2004) 2 SCC 297. The Apex Court in SK Abdul Rashid & Ors. v s. State of Jammu and Kashmir & ors. : (2008) 1 SCC 722 (in para 15 of the SCC) held that: 15. No executive order could be issued in derogation of the statutory r ules far less to legislative Act. The Rules being statutory in nature and having been framed under the Jammu and Kashmir Civil Servants (Removal of Doubts and D eclaration of Rights) ordinance, 1956 have statutory force, the executive order in question was required to be issued in consonance with and not in derogation t hereof. In the present case the executive instruction/decision vide the impugned letters dated 03.10.2008 (Annexure No. 13) which are in derogation of the Centr al Civil Service (Revised Pay) Rules, 2006 for the post of Overseer and also the recommendation in para 7.39.22 of the 6th Central Pay Commission which has been approved by the Central Govt. by necessary enactment of the Rules the said Rule , are illegal and not acceptable under the law. 15. In All Assam Fishery Officials Technical Association (supra), this Court dealing with the question of parity in basic scale of pay between the two sets of Fishery Extension Officers in the same department, one with B.Sc. with Zoolo gy and another with B.F.Sc. Degree and noticing the fact that both the said qual ifications were entry level qualification and both the groups enjoy the same bas ic pay, held that B.Sc. Degree holders were entitled to parity in pay so far as there is no distinction in duties, responsibilities and status between the two g roups. 16. Dealing with the concept of equal pay for equal work and the claim of the petitioners involved therein for entitlement of the same pay scale as that o f B.F.Sc. degree holders, observed thus: 7. Equal Pay for Equal Work and claims for parity in pay is one of the th orny problems of service jurisprudence. Fixation of pay is essentially an execut ive function to e performed by the experts in the field like the Pay Commission and other such expert bodies. The role of the Court in such matters would natura lly be severely limited. In recognizing the concept of equal pay for equal work first as a constitutional goal and then as a constitutional right, judicial opin ion has undergone some transformation and the Courts have undertaken the exercis e of scrutinizing the question of disparity in pay form the stand point of Artic le 14 of the Constitution. It will however be difficult and yet at the same time unnecessary to even attempt to lay down exhaustively the various factors that s hould go in to determination of a claim of parity in pay. Academic qualification s prescribed for appointment to a particular post; similarly in duties attached to the post in question; the responsibilities undertaken; promotional avenues an d the conditions of service upon promotion are some of the factors which would h ave relevance. No single factor would however be determinative of the question. It is the overall picture that would emerge from the consideration of all releva nt factors, which will decide the tenability or otherwise of a claim for parity in pay. 8. In the instant case, the materials on record would go to show that thoug h different academic qualifications had been prescribed for entry to the post of Fishery Extension officer, upon appointment to the said post for all practical purposes, no distinction has been maintained between the two categories of Exten sion Officer on the basis of their different academic qualifications. There is n o provision for different grades with different scales of pay commensurate with higher or lower academic qualifications. The duties and responsibilities of Fish ery Extension Officers are the same, regardless of academic qualifications of th e incumbents. The posts are freely transferable and the incumbents with either q ualification can hold any post of Fishery extension Officer. The incumbents are entitled to promotion to the higher post on the basis of the same-eligibility co nditions. Once promoted no distinction is maintained between the Fishery Extensi on Officer with different academic qualifications. The scale of pay in the highe r posts and the promotional avenues are uniform. The initial distinction stands obliterated at the subsequent stages of the career of an incumbent; even at the initial stage of entry no distinction is discernible except in the matter of the scale of pay. 9. The eventual picture that therefore, emerges from the above analysis of facts, is that all Fishery Extension Officers regardless of their academic quali fications constitute one single cadre and except for a difference in the pay sca le, there is no discernible difference between the two categories of Fishery ext ension Officers in any other matter. Higher academic, qualification can be a val id basis for classification between the holders of same post, provided the class ification is carried to its logical conclusion by providing for different grades within the cadre. The same is not the position in the present case. 10. The discussions that have preceded, thus leave the Court with no other conclusion except that disparity in the pay scale between the two categories of Fisheries Extension officers has in fact negatived the equality clause under Art icle 14 of the Constitution and, therefore, such disparity must be brought to an end by directing the concerned authority to make appropriate amends by giving a ll consequential relief (s) to the writ petitioners as may legally. How from the present directions. 17. Above being the position, I am inclined to accept the writ petition gran ting the aforesaid prayers. Consequently, the writ petition is allowed by settin g aside and quashing of the impugned orders directing the respondents to extend the benefits of upgraded pay scale to the petitioners who have alternative quali fication as has been extended to the diploma holder Charge Mechanic. The respond ents shall extend the same to the petitioners from the same date from which the diploma holder Charge Mechanics have been provided with. The benefits which have accrued to the petitioners by virtue of this judgment and order shall be so gi ven as expeditiously as possible preferably within 30.04.2011.