1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO.259/2002. Shri Laxmikant R. Gadekar, DraughtsmanGrade III, Project Branch, Works Division VI, GTIDC,Bicholim-Goa, resident of Carjuem, Aldona. .. Petitioner. Versus. 1. The Chief Engineer, Water Resources Department, having office at Second floor,Junta House Annexe, Panaji,Goa. 2. State of Goa, through its Chief Secretary,having office at Secretariat, Panaji- Goa. 3. Goa Tilary Irrigation Development Corporation, through its Chairman, having office at Junta House, Panaji-Goa. .. respondents Mr. M. S. Sonak, Advocate for the petitioner. Mr. S. R. Rivonkar, Government Advocate for the respondents. Coram :- S. C. DHARMADHIKARI & R. C. CHAVAN, JJ. Date : - 24 th July, 2008. ORAL JUDGMENT : 1. By this petition under Article 226 of the Constitution of 2 India, the petitioner prays for a writ of Mandamus or any other writ, order or direction in the nature of mandamus directing and commanding the respondents to grant Time Bound Promotional Scale (T.B.P.S.) on the basis of the revised pay scales in terms of Government of India decision dated 13th March, 1984 and fix his pay accordingly. Alternatively it is prayed that the direction be issued to the respondents to grant pay scale of Rs.5000-150-8000 which the petitioner's juniors are drawing in the same post. 2. The petitioner claims the above relief in the following facts and circumstances : The petitioner was appointed as Draughtsman, grade III in Public Works Department of the State of Goa by an order dated 2.1.1976 on temporary basis in the pay scale of Rs.260-8-300-EB-340- 10-380-EB-10-430. The petitioner's appointment was regularized vide order dated 29.12.88 with effect from 9.1.76.. 3. The Public Works Department of the State was bifurcated into two departments, namely, Public Works Department and Irrigation Department. The petitioner was allotted to Irrigation Department. The petitioner was initially appointed to the post of Draughtsman, grade III in the above pay scale. However, vide order dated 13.3.84, Government of India was pleased to revise the pay scales of Draughtsman, grade III, 3 II and I on the basis of Award of the Board of Arbitration. In terms of the office memorandum dated 13.3.84, the pay scale of Draughtsman, grade III was revised from 260-430 to 330-560. However, for obtaining the benefits of the said revised scale, the candidate was required to have a qualification of the National Trade Certificate (Civil). It is undisputed before us that the petitioner was not having the said certificate on this date. 4. It is the petitioner's case that he acquired the above certificate on 28.2.89. In view of the acquisition of the said qualification by him, he became entitled to the revised pay scale in terms of the O.M. dated 13.3.84. Thus, he was entitled to the revised pay scale of Rs.330- 560 of this O.M. at least from 28.2.1989. The petitioner made a representation dated 12.6.89 as he was not granted this benefit. In the meanwhile, the Government of Goa, issued O.M. dated 5.7.89 and framed Time Bound Promotional Scale (TBPS for short) to Group (C) and (D) employees. In terms of the scheme, the employees falling in the said group, on completing 12 years of service in any post without any promotion, would be entitled for pay scale of the next promotional post. In terms of the said scheme, the petitioner became entitled to the benefit as he had joined the post on 2.1.1976. He completed 12 years on 8.1.88. The petitioner made a grievance that he was not granted the benefit of 4 the pay scale in terms of the award/decision of the Board of Arbitration so also, while granting TBPS scale, he was discriminated. The petitioner accepted TBPS scale vide letter dated 22.9.89. However, he requested that said benefit be extended to him with effect from the decision dated 13.3.84. Annexure D is the copy of the representation in this behalf. However, first respondent issued an order dated 3.11.89 purporting to grant of benefit of revised pay scale in terms of O.M. dated 13.3.84. The petitioner was granted the pay scale under the TBPS scheme vide order dated 31.8.89. Thus, his pay was Rs.1200-2040. This he could have been granted if the benefit of the Office Memorandum dated 13.3.84 was extended to him as prayed or the TBPS scales were awarded to him in terms of the Government decision on the petitioner's request. The grievance of the petitioner is that all this has resulted in anomaly in his pay scale. The petitioner is senior to some of the Draughtsman in grade III, however, he has been getting lower pay scale than his juniors. He, therefore, made a representation dated 16.11.89 to the respondent which was rejected on 29.6.90. The reason for rejection was that the Government has decided that for granting TBPS scale, the Draughtsman, grade III were required to complete 12 years of service from the date of granting revised pay scale in terms of Government of India O.M. dated 16.5.90. It was ordered that anomaly which has resulted due to senior getting promotions before 12 year's service and his juniors getting TBPS scale and subsequently 5 promoted needs to be removed. Exh.G is the copy of the O.M. dated 16.5.90. The petitioner's representations for removing the anomaly were forwarded through proper channel consistently but, nothing was done and he was informed that his request to grant TBPS scale on the basis of revised pay scale has been referred to Government for verification. 5. The petitioner states that corrigendum dated 2.3.2000 was issued by the respondents wherein they communicated that the order dated 3.11.89 stood modified to the extent that petitioner would be entitled for benefit of revised pay scale (TBPS) with effect from 1.3.89 instead of 1.6.89. However, the petitioner invited the attention of the Government to the decisions by which he desires to remove the anomaly by invoking Fundamental Rule 22 or Fundamental Rule 27 and prayed that in his case also the same principle be applied and the anomaly be removed in his pay scale. His grievance was that he was getting less salary than juniors who are similarly placed. The respondent No.1 vide order dated 22.3.2000 was pleased to inform the petitioner that the grant of TBPS scale was a mistake as the petitioner was required to complete 12 years of service from the date of grant of revised pay scale in terms of Government of India's order. As such, the order granting TBPS scale to him stood cancelled. He was, therefore, constrained to make a representation dated 16.1.2001 and pointing out 6 that the order dated 22.3.2000 was totally illegal as grant of TBPS scale has absolutely no link with grant of Revised scale in terms of Government of India's order dated 13.3.84. The petitioner stated that TBPS scale is awarded to the employee, who has completed 12 year's service in a post without any promotion, whereas the revised pay scale in terms of Board of Arbitration's decision by the Government of India, was a distinct benefit. However, the anomaly on account of non- extension of the benefits in terms of Government's decision and order resulted in the petitioner making another representation. But this time, the petitioner was informed that the respondents are pleased to fix his pay at Rs.1290 plus personal pay Rs.10 with effect from 1.3.89. This is in terms of order dated 30.3.2001 (Exh.M). 6. The petitioner then was extended the benefit of Assured Career Progression Scheme. In terms of this scheme, the pay scale granted was Rs.4500-125-7000 vide order dated 31.1.2002. The petitioner states that this benefit was also extended to him without removing the earlier anomaly. Thus, while granting the said scale, revised scale which ought to have been granted earlier has not been taken into account at all. The result is that the petitioner is denied the benefits of revised pay scale and Assured Career Progression Scheme. The petitioner nonthless accepted above benefits under protest and without prejudice by his communication dated 26.2.2002. 7 7. In paragraphs 19 and 21 of the petition, the petitioner has pointed out that the petitioner's juniors in the post of Draughtsman, grade III appointed in the year 1984 are getting basic pay of Rs.6000, those who are appointed in the year 1983 are getting basic pay of Rs.6125/- and those who are appointed in the year 1977 are getting basic pay of Rs.7000. The petitioner having been appointed on 2.1.76 although senior to all of them is yet getting lesser pay scale. There is no benefit as such to him despite all monetary advancement and development which is payable under the schemes. The petitioner pointed out that his juniors appointed in the year 1977 without the qualifications of National Trade Certificate are drawing pay scale of Rs.5000-8000. The petitioner has pointed out in paragraph 20 that all of them are performing the same duties. The petitioners grievance is that action of the respondent amounts to denying “equal pay for equal work” so also, being discriminatory inasmuch as the petitioner and his juniors doing same work, are treated distinctly. These actions violate the mandate of article 14 and 39(d) of the Constitution of India. 8. This is the grievance for which the petitioner has approached this Court and claimed above stated reliefs. Mr. Sonak appearing for the petitioner contended before us that each of the annexures to this petition would demonstrate that the respondents have 8 not taken any decision which would mean or have the effect of the petitioner being disentitled to any benefits and revised pay scales. In fact, they take corrective measures and extend the benefit to the petitioner with effect from 1.3.89 under TBPS scheme by issuing a corrigendum. This is not as if the petitioner is held to be ineligible to revised pay scales. The revised pay scale's benefit is extended to all similarly situated employees. The petitioner also has been held to be entitled to the benefit thereof. However, while doing so, the petitioner's case has been treated distinctly and that is how a anomalous situation arises which ought to have been corrected at the Government level or at least by the ombudsman. His submission is that when the junior Batch- mates are performing identical duties and discharging same functions. They have got the benefit of TBPS and Career Advancement scheme so also revised pay scales. Not extending the same to the petitioner, violates the mandate of Article 14 and 39(d) of the Constitution of India. He invited our attention to the office memorandum dated 16.9.99 which clarifies O.M. dated 16.5.90. It is urged by Shri Sonak that a senior promoted before completing 12 years and juniors drawing higher pay in view of the grant of TBPS scale and subsequent promotion need not be removed in view of the fact that senior already gets the benefit of promotion before completion of 12 years but, in number of cases it was noticed that juniors are drawing higher pays than their seniors. In order to remove anomaly in pay, Government has decided that senior 9 promoted before completing 12 years of service and junior drawing higher pay in view of grant of TBPS or subsequent benefits/promotion shall be removed by bringing the pay of the senior official on par with his junior. In respect of Fundamental Rule 27, his submission is that firstly, the petitioner although senior, was not promoted. In fact none have been promoted. All Draughtsman, grade III in the pay scale ought to have been promoted so also the petitioner. Having not been promoted, they get benefits under the schemes which are promulgated by this Government. Further, they have got benefit of revised pay scale. However, merely because the anomaly referred to in the case of senior getting promotion before completion of 12 years of service is mentioned in the office memorandum dated 16.9.99, it does not mean that it is liable to be ignored. The same principle will apply as ultimately all actions have to be non-arbitrary and non-discriminatory. They cannot violate the constitutional mandate and he relies upon the decision of the Hon'ble Supreme Court in the case of Union of India and Others Versus P. Jagdish and Others reported in 1997(3) SCC 176. 9. On the other hand, Mr. S. R. Rivonkar, learned Counsel appearing for all the respondents contended that the office memorandum dated 16.9.99 has no application to the case of the petitioner. He relies upon the affidavit in reply filed by the Chief Engineer of the Water Resources Departments, Government of Goa in reply to this petition and 10 contends that the petitioner was appointed as Draughtsman, grade III in the Public Works Departments as per the recruitment rules which are more particularly referred to in paragraph 6 of the affidavit in reply. After his appointment, the petitioner was held entitled to revised pay scale with effect from 13.3.84. Since the petitioner obtained National Trade Certificate on 28.2.89, he was granted revised pay scale with effect from 1.3.89. The petitioner was not entitled to revise pay scale with effect from 13.3.84 as he was not possessing the certificate on 13.3.84. In such circumstances, the case of the petitioner is distinct from that of the other employees appointed in the same grade. The petitioner's period of 12 year's service is counted with effect from 13.3.84. Once the petitioner possesses the required qualification in March 1989, his pay scale is revised with effect from 1.3.89. He has been granted TBPS scale after completion of 12 years from 1.3.89 and not with effect from 8.1.88. Therefore, there is no substance in the contention of Shri Sonak that there is violation of the mandate of Article 14 and 39(d) of the Constitution of India. Once the petitioner was not holding the required qualification and acquired them later on then, none of the Government action and orders in his case can be faulted. Therefore, the petitioner's representation has been rightly rejected on 29.6.90. The petitioner was granted benefit of Assured Career Progression Scheme with effect from 1.3.2001 after the completion of 12 years of the granting of revised pay scale as per the office 11 memorandum dated 13.3.84 and 16.5.90. In such circumstances, non- reference to paragraphs 20 and 21 of the petition in the Affidavit in reply would make no difference. The petitioner is not holding requisite qualification as per office memorandum dated 13.3.84 at the relevant time and, therefore, the benefits have been extended to him on the basis of his qualification and as and when they fell due. For these reasons, the petition deserves to be dismissed. 10. With the assistance of the learned Counsel appearing for both the sides, we have perused the petition and Annexures thereto. It is clear from the office memorandum dated 13.3.84 that the Government of India, Ministry of Finance set up a consultation machinery and sought advise with regard to pay scales of the Draughtsman,grade I, II, III working in the Central Public Works Department. This recommendation was sought on the basis of award of Board of Arbitration and ultimately, the committee advised the Government to extend the benefit of the award and that is how the original scale of grade III Draughtsman came to be revised in terms of the award. However, Government was pleased to direct that the scales of pay may be revised provided their recruitment qualification is similar to that prescribed in the scale of Draughtsman in the Central Public Works Department. Those who do not have the recruitment qualification, will continue in the pre-revised scales. It is undisputed before us that this 12 office memorandum has been made applicable and there is nothing on record to indicate that the Draughtsman in the Public Works Department, Government of Goa are not entitled to the benefit as above. Mr. Rivonkar does not dispute that Recruitment Qualifications for the Draughtsman in the State Public Works Department is identical. There is nothing in this O.M. which makes it necessary for the employees, including the petitioner, to obtain any Trade Certificate. Therefore, grant of the benefits of the Revised Pay Scale was in no way dependent upon the petitioner obtaining the National Trade Certificate. However, the petitioner pointed out on the basis of his representation dated 12.6.89 that he was not held entitled for the revision of the pay scales because his earlier professional certificate was not acceptable. Now, he has completed a National Trade Certificate course in the trade of Draughtsman (Civil), and, therefore, he is eligible to revision of pay to next higher scale as per the order dated 28.4.84. The petitioner prayed for promotion to the suitable grade as he had completed 13 year's service and got above certificate as well. 11. On 5.7.89, the Government of Goa, Department of Personal secretary issued an office memorandum on the subject of time bound promotional scales to Group (C) & (D) employees and sought to redress their grievances that they were not promoted for years together. The scheme postulates that the employees in Group (C) & (D) ought to 13 be eligible to be promoted to Group (B) posts. They must have completed 12 years of service in the existing post and they should possess requisite qualification prescribed for the next higher post. There are other requirements as well but we are not concerned with the same. 12. The petitioner pointed out that he accepts the Time Bound Promotional Scale with effect from 1.6.89 under protest but he is also entitled for the revised pay scale in terms of earlier decisions of the Government of India. A representation was made by him in September,1989 on this subject. Ultimately, an office order came to be issued on 31.8.89 granting the petitioner the benefit of the TBPS scale. It was made effective from 1.6.89 but later on by a corrigendum the same was corrected to 1.3.89. 13. However, the petitioner by (Annexure F) memorandum dated 29.6.90 was informed that his application dated 16.11.89 to grant time bound promotional scale cannot be acceded to in the light of the O.M. dated 16.5.90 issued by the Department of Personnel Secretariat at Panaji. The petitioner pointed out that he did not receive the benefit of next higher pay scale which he deserves in terms of Government decision dated 13.3.84. His representation through proper channel highlights the above grievances and points out that his earlier representations have not been taken into consideration at all. This is 14 gist of the representations which have been forwarded from the year 1989 till 1999. It is only in the month of March 2000 that a corrigendum in his case was issued correcting office order dated 3.11.89. However, the petitioner was granted the time bound promotional scale in terms of O.M. dated 5.7.89 with effect from 1.3.89 in terms of above corrigendum. Later on, relying on clarification contained in O.M. dated 16.5.90, the Government of Goa cancelled the order dated 31.8.89 so also, the corrigendum and this time the petitioner was not given any opportunity of being heard nor any show cause notice was issued to him. The petitioner pointed out through his detailed representation dated 16.1.2001 that despite rendering continuous service as stipulated in the office memorandum, he could not have been denied the benefit of TBPS scale. This entire thing is done because he possessed the National Trade Certificate qualification belatedly. Once, according to the petitioner the revised pay scale's benefit was extended to all Draughtsman, grade III recommended by Board of Arbitration, it does not mean that the petitioner's services which have been rendered from 1976 to January 1989 have to be ignored. He was not given benefit of any promotional post admittedly. In such circumstances, the subsequent action of the Government vide Exh. M granting revised pay scales to the petitioner cannot be said to be something which redresses injustice done to him completely. The Government order dated 13.3.2001 states that the revised pay scales were granted to the petitioner from 1.3.89 and the 15 petitioner's pay was fixed accordingly on that basis. If by the subsequent order the petitioner is informed that on the basis of recommendations of screening committee, the Draughtsman, grade III, who had completed 12 year's regular service from the date of grant of qualification linked scale of pay are granted first upgradation and the petitioner should exercise an option in terms of Fundamental Rule 22 (i)(a1) so that he will get the benefit of the initial upgradation, that is under Assured Progression Scheme. This is again a distinct benefit. A revised statement of certificate was sent to him. The petitioner accepted this initial upgradation in Assured Career Progression Scheme under protest on 26.2.2002. However, he petitioned to the Ombudsman and the Ombudsman rejected his request on the ground that he has no jurisdiction to look into the grievances of pay anomaly. 14. In our view the respondents have failed to assign any reason as to why the petitioner's case has been treated distinctly than that of the employees, who were performing similar work and duties. The employees whose instances the petitioner has cited in the petition, are admittedly juniors to the petitioner. The petitioner was entitled to the benefit of both the schemes namely them TBPS and Assured Career Progression Scheme. Further, the petitioner was entitled to the revised pay scale's benefit in terms of the Government decision dated 13.3.84 as well. All these are undisputed facts. Similarly, the employees in the 16 same grade, who joined the service subsequently, were also entitled to the benefits and they were extended to them. Yet, merely because the petitioner acquires National Trade Certificate qualification subsequently does not mean that his case has to be treated differently. The petitioner must, on the basis of principle of “equal pay for equal work” be treated equally. He should have not been treated and discriminated merely because the qualifications which are stipulated for TBPS were acquired by him later on. He makes no grievance on that score and accepts the TBPS scale's benefit extended to him. Yet, when it comes to fixation of pay and removing the anomaly so also extending to him the benefit of Assured Career Progression Scheme, he should have been treated on par with the employees working in the same grade but joining subsequently. If they were held to be entitled to these benefits, then, we see no reason as to how the petitioner could be denied the same. Thus, it can be seen that the benefits admissible to the petitioner have been denied to him though he was similarly placed with his colleagues, who were much junior to him. Further, they are denied to him on grounds which are wholly unsustainable. The reasons for denial of the Revised Pay Scales, TBPS and Assured Career Progression Scheme on par with other employees of same grade are not at all germane and relevant to the same. The reliance on the Supreme Court Decision by Shri Sonak is thus appropriate. The observations in paragraph 4 thereof are applicable to the present case on facts so also the Principle applied therein. 17 15. It is in these circumstances that we are satisfied that a case has been made out by the petitioner for issuance of writ of mandamus as prayed. Accordingly, the petition succeeds and Rule is made absolute in terms of prayer clause(B) with no order as to costs. 16. Since the petition is filed in the year 2002 and the petitioner has been consistently applying for redressal of his grievances even prior thereto, interest of justice would be sub-served if the respondents are granted 3 months time to do the needful and extend to the petitioner the requisite monetary benefits. In other words, the Pay- scale of the petitioner be fixed by extending to him all benefits and the payments be effected accordingly. S. C. DHARMADHIKARI, J R. C. CHAVAN, J SMA