Calcutta High Court

State Of West Bengal vs Ranjit Kumar Mondal And Ors. And ... on 26 September, 2001

Equivalent citations: (2002)2CALLT404(HC)

Author:
Tarun Chatterjee

Bench:
Tarun Chatterjee

JUDGMENT

A.K. Bisi, J.

1. Both the appeals have been preferred by the State of West Bengal against the judgment and order dated 11th April, 1994 passed by the learned Judge of this Court in C.R. No. 16892(W) of 1984 which also disposed of C.R. No. 12735(W) of 1984. By the impugned judgment and order the learned Judge allowed the writ application and directed the State authorities to place the writ petitioners in the scale of Rs. 425-1050/- with consequential service benefits excepting arrears with effect from 1st April, 1981 and the writ petitioners were ordered to be placed in the corresponding revised scale of pay of Rs. 1390-45-1615-55-2055-65-2445-2970/- as prescribed under West Bengal Services (Revision of Pay and Allowances) Rules, 1990 and other consequential service benefits including career advancement with a further direction to pay the arrear salaries from 1st January, 1990 in the manner indicated in the said judgment.

2. Previously the said two appeals preferred by the State of West Bengal were dismissed by a Division Bench of this Court on 6th April, 1998 against which the State of West Bengal filed a special leave petition to Appeal (Civil No. 12636/98) before the Hon'ble Supreme Court and the Special Leave Petitions were dismissed by the Hon'ble Supreme Court without prejudice to the writ petitioners' right to move the High Court for rehearing of the matter as indicated in the judgment. In terms of the direction of the Hon'ble

Supreme Court the State of West Bengal made applications for re-hearing of the appeals which were allowed by another Division Bench of this Court on 5th April, 1999.

3. The writ petitioners were posted as "Medical Technologists" under the Health Directorate, Government of West Bengal and were placed in the scale of Rs. 300-685/-, Rs. 360-815/- and Rs. 425-1050/-. Originally, the writ petitioners were designated as "Laboratory Assistant", X-ray Assistant, E.C.G. Tech., E.M.G. Tech, E.E.G. Tech.

4. The main grievance for which the writ applications were filed is that the Medical Technologists who were posted in the Department of Nuclear and Experimental Medical Science and Institute of Post Graduate Medical Education and Research, Calcutta had been placed in the scale of Rs. 425-1050/-, but the writ petitioners who had similar qualifications and performed similar nature of duties, had been placed in the scale of pay Rs. 300-625/-, Rs. 360-815/- and Rs. 425-1050/-. It was alleged in the writ petitions that the Medical Technologists posted at Department of Nuclear and Experimental Medical Science and Institute of Post Graduate Medical Education and Research, Calcutta and the Medical Technologists posted in other wings of the Health Department and hospitals of the State Government and/or the Health Directorate performed similar jobs and duties in all respects and had similar qualifications and thus the Medical Technologists irrespective of their place of posting, qualification, nature of job had formed one specific and distinct class. It was alleged that there was no intelligible differentia between the writ petitioners and others who were posted in the Department of Nuclear and Experimental Medical Science and Institute of Post Graduate Medical Education and Research, Calcutta.

5. It was further alleged in the writ application that there was no basis for making any discrimination between the employees belonging to the same cadre simply by virtue of posting in one place or in the other. It was stated further that they had qualification and performed similar jobs, duties and they were equal in real sense of the term. It was further stated that the duties and responsibilities of the writ petitioners by reason of their nature of work included all works that their counter-parts were doing in the Department of Nuclear and Experimental Medical Science. Unfortunately, the State Authorities who were the respondents in the writ applications did not file any affidavit-in-opposition and accordingly the learned single Judge proceeded on the footing of doctrine of non-traverse and granted relief relying upon the principles laid down by the Supreme Court in the cases of equal pay for equal work, reported in AIR 1986 SC 2049 (
Bhagawan Das and Ors. v. State of Haryana and Ors.
), (
Radbir Singh v. Union of India
), (K. S. P., College Stop Gap Lecturers Associationv.

State of Kamataka), (
State of Rajasthan v. Gopi Kishan Son
), (U.P.I.T. Deptt. C.P.S.W. Associationv.

Union of India), (
Girin Kalyan Kendra Workers Union v. Union of India
), (Gharwad Distt.

P.W.D. Literate Daily Wage Employees Asson, and Ors. v. State of Kamataka and Ors.), 1993(1) SCC 39 (
State of Madhya Pradesh and Ors. v. Promod Bhartiya and Ors.
).

6. The learned single Judge pointed out that on similar facts and circumstances, a group of Medical Technologists filed a writ application which was allowed by Mohitosh Majumdar, J. (As His Lordship then was) by a detailed judgment dated 8th July, 1991, in C.R. No. 13804(W) of 1981 and thereafter those writ petitioners had been enjoying the scale of Rs. 425-1050/- which was subsequently revised as Rs. 1390-2970/- under ROPA Rules, 1990.

7. In view of the above noted findings the learned single Judge of this Court allowed the writ applications filed by the writ petitioners and granted relief to them in the manner already stated.

8. The State of West Bengal as appellant had challenged the above noted findings of the learned single Judge in these appeals and contended, inter alia, that the learned Judge erred in directing the Government to fix the pay scale of the writ petitioners at Scale No. 11 and the corresponding scale under ROPA Rules, 1990 which is the pay scale available only to a promotional post and that the learned Judge erred in upgrading the pay scale of the writ petitioners at Grade III post which would have been their pay scale at the promotional post being grade I, as by reason of the impugned judgment the pay scale of the writ petitioners became equal to the pay scale of the promotional post in the same cadre without any corresponding higher responsibility and without any appointment to the said promotional post. It was contended that the learned Judge erred in not appreciating the fact that promotional post and higher pay scales had been provided in the cadre to which the writ petitioners belong to avoid stagnation in the post and in the event, the said order was to be implemented, the senior and junior in the service would be getting equal pay scale although they were not within the comparable category. According to the learned Advocate for the State Authorities, the learned Judge erred in not appreciating the fact that in the event the impugned order was implemented, the same would put at par the junior most post with the senior most post in the cadre affecting the next higher post which would bring about unprecedented anomalous situation, and that the learned Judge also erred in not appreciating the fact that equation of post and determination of pay scales was a primary function of executive and not of the judiciary and in the instant case 3rd Pay Commission having rejected higher scale of pay, the learned Judge was unjustified in granting higher pay scale overlooking the said recommendation.

9. The learned Advocate for the respondents contested the appeal justifying the findings of the learned single Judge and contending that the Laboratory Assistants and X-ray Assistants now re-designated as Medical Technologists working in various Hospitals and Health Centres, Government of West Bengal, perform jobs and duties similar to the Laboratory Assistants in IPGMER and accordingly the learned Judge had rightly granted relief to the respondents applying the principles relating to equal pay for equal work.

10. Having heard the learned advocates for the parties and after examining the rival contentions as put forward by them, the following points have arisen for our decision in the appeals :

(1) whether or not Laboratory Assistants and X-ray Assistants (now re-designated as Medical Technologists) both in Grade II and Grade III and working in various Hospitals and Health Centres in West Bengal who are in pay scale Nos. 6 and 8 are entitled to the same pay scale No. 11 which is given to the three Laboratory Assistants in IPGMER.

(2) whether or not the learned single Judge was justified in granting relief as claimed by the writ petitioners by invoking the doctrine of equal pay for equal work.

Being interlinked, both the points are taken up together for consideration for the sake of convenience and brevity.

11. Originally the writ petitioners were designated as Laboratory Assistant, X-ray Assistant, E.C.G. Tech, E.M.G. Tech, E.E.G. Tech and they are now re-designated as Medical Technologists. Their basic grievance is that the Medical Technologists who are posted in IPGMER have been placed in the scale of Rs. 425-1050/- but the writ petitioners who have similar qualifications and perform similar nature of jobs and duties have been placed in the scale of Rs. 300-685/-, Rs. 360-815/-, and Rs. 425-1050/-. It is contended on behalf of the writ petitioners that the Medical Technologists whether posted at IPGMER and the Medical Technologists posted in other wings of Health Directorate perform similar jobs and duties in all respects and have similar qualifications and thus the Medical Technologists irrespective of their place of posting, qualification, nature of job, have formed one specific and distinct class and there being no intelligible differentia between the writ petitioners and those posted in IPGMER, the principle of equal pay for equal work ought to be applied by the State authorities by placing them in the scale of Rs. 425-1050/- prescribed under the West Bengal Service (Revision of Pay and Allowance) Rules, 1981, which has subsequently been revised in the scale of Rs. 1390-2970/- under the West Bengal Service (Revision of Pay and Allowance) Rules, 1990.

12. It was contended by the learned advocate for the State appellant that the Laboratory Assistants belonging to Grade III, Grade II and Grade I are working in various Medical Institutions run by the State Government and they are not at par with the Laboratory Assistants who are working in IPGMER and have higher qualifications and separate training. He has drawn our attention to the material averments made in Para-9 of the supplementary affidavit filed on behalf of the appellant before us. The said averments are as follows :-

"Laboratory Assistants attached to those two departments of IPGMER have to acquire different educational qualification and training and experience and the nature of work and mode of recruitment are different from other Laboratory Assistants engaged in different Hospitals which are outside IPGMER. The chart below will show the difference :-

Laboratory
Asstts. Posted Elsewhere
outside IPGMER

Laboratory
Asstts. Posted in IPGMER
in those two Deptt.

(1)

(2)

Qualification Required for Recruitment

S.F.

ISC/B.Sc.

Pt. I/B.Sc.

Experience

Nil
year's experience

Training Required

Pre-service of in service Training

Pre-training
from B.A.R.C. Bombay
and in case of B.Sc. (Hon)
personnel 6 month's Training
in ISOTOPE Laboratory

Mode
of Recruitment

From
open market

From
the existing staff working
for 5 years

Job
contents

Pathological
test With
Microscope or
Chemical

To
handle sophisticated and sensitive
machines and to carry
out very sophisticated tests.

13. Admittedly the cadre of West Bengal Subordinate Health Service (Non Medical Technical Personnel) comprises several branches one of which is Hospital Services comprising Laboratory Assistants-cum-Laboratory Technicians in Group 'A' cadre of West Bengal Subordinate Health Service and in order to avoid stagnation of the said Hospital Services of Laboratory Assistant, in 1960, 3 cadres of Laboratory Assistants were created which are as follows :-

(a)Grade
I:

Comprising 10% of the total number of posts of Group 'A'

(b)Grade II:

Comprising 30% of the total number of posts of Group 'A'

(c)Grade III:

Comprising 60% of the total number of post of Group 'A'

14. The respective pay scales of the aforesaid Grades I, II, and III are set out hereinbelow :-

From 1.4.1960

From 1.4.1961

From 1.4.1971

From 1.4.1981

Gr. I Rs. 150-300/-

Rs. 200-400/-

Rs. 300-600/-

Rs. 425-1050/-

Gr. II Rs. 100-200/-

Rs. 150-250/-

Rs. 230-425/-

Rs. 360-815/-

Gr. III Rs. 55-130/-

Rs. 125-200/-

Rs. 230-425/-

Rs. 300-685/-

15. The learned Advocate for the appellant has submitted that the respondents have not been able to show that the above noted points of difference as indicated in the affidavit filed on behalf of the appellant are incorrect. The learned advocate for the respondents on the other hand has contended that since the Medical Technologists appointed in IPGMER and the Medical Technologists working in various Hospital and Health Centres in West Bengal perform similar jobs and duties irrespective of their place of posting, qualification and nature of job and have formed one specific and distinct class the writ petitioners are entitled to get the same scale of pay as claimed by them.

16. The relevant Memo, dated 13th Jul, 1982 of the Department of Health and Family Welfare, Government of West Bengal which has been marked annexure 'F' to the supplementary affidavit filed on behalf of the appellant indicates in clear terms that all the technical personnel of different designations for the various categories under the Department of Health and Family Welfare such as Laboratory Assistant/Technician, X-ray Assistant/Technician etc. have subsequently been designated as Medical Technologist and with the change of designation as sanctioned by the aforesaid Government order there shall be no change in respect of pay and allowances and the posts referred to therein shall continue to carry same pay and allowances as before. So it is quite clear that change of designation does not imply any change in respect of pay and allowances and the posts of para-medical personnel of various categories shall continue to carry the same pay and allowances as before.

It is also evident from a Government order contained in the Memo being No. 1A/1253/HF/O/MA/2M-12/99 dated 10th May, 1999 issued by the Deputy Secretary, Department of Health and Family Welfare, Government of West Bengal to the Director of Health Services, Government of West Bengal that the Governor has excluded all categories of the above employees from Group-A of the NMPT Cadre (Hospital section) and constituted a new Cadre namely, "Medical Technologist" excepting the posts of Laboratory Assistant/Laboratory Technician in the Department of Nuclear & Experimental Medical Science and Endocrinology and Human Metabolism under the Institute of Medical Education and Research who are already enjoying higher pay scale in terms of the judgment passed by the High Court in C. R. No. 13804(W) of 1981. Thus it is quite clear from this Government order also that all categories of the employees who are in the posts of Laboratory Assistant/Laboratory Technician, X-ray Assistant/X-ray Technician etc. constitute a new cadre namely Medical Technologist excepting the post of Laboratory Assistant/Laboratory Technician posted in IPGMER who are enjoying higher pay scale in terms of the judgment passed by this Court in C.R. No. 13804(W) of 1981.

17. As noted earlier, three Laboratory Assistants posted in IPGMER filed a writ petition in this Court and Mohitosh Majumdar, J. (As His Lordship then was) by his order dated 8th July, 1991 made the rule absolute. In the said writ petition those writ petitioners prayed for a mandate upon the State authorities to give effect to the ROPA Rules 1981 so far as those writ petitioners were concerned and prayed for a mandate upon the State to cancel, withdraw or rescind the order contained in annexure 'H' to the said writ petition whereby the Deputy Director of Health Services (Administration), West Bengal informed the Director, IPGMER that the revision of pay scale of Laboratory Assistants/Bio-Chemists at IPGMER appeared to be anomalous and requested the latter not to allow option and fixation of pay of those staff as per ROPA Rules 1981, pending finalisation of the issue. It was specially observed by Mohitosh Majumdar, J. in his judgment passed in C.R. No. 13804(W) of 1981 that there was no anomaly for granting higher scale of pay to those petitioners and placing other

employees at different scales of pay who held posts of Laboratory Assistants with different duties and responsibilities that of those writ petitioners. The duties and responsibilities of the Laboratory Assistants posted in IPGMER have been enumerated in
the said judgment
in the following manner :-

"The duties and responsibilities of the petitioners by nature of the work include :

(a) Handling of open source of radiation in the form of radioactive isotopes of Iodine (1-131, H-25) Mercury (Hg 203) Technetium pertechnetate (99 m Rc 04) for preparation of dose (both for diagnosis and therapy), storage of radioactive wastes etc.

(b) Preparation of Radioactive samples for counting, using nuclear instruments for both clinical and experimental purposes.

(c) Scanning and measurements on patients suffering from thyroid, kidney, liver, brain etc. diseases.

(d) Handling of complex nuclear and electronic equipments.

(e) Data processing and preparation of patients reports and record keeping."

18. It appears from the impugned judgment dated 11th April, 1994 passed by the single Judge which is under challenge in both the appeals that the learned Judge was of the view that on similar facts and circumstances a group of Medical Technologists preferred a writ application before the Court and obtained C.R. No. 13804(W) of 1981 and D. K. Sen, J, (As His Lordship then was) granted an interim order on 19th April, 1982, directing the respondents that those writ petitioners be paid salaries in accordance with the Rules framed pursuant to the recommendation of the Pay Commission if they were entitled to the same. In our view, while making such observation in the impugned judgment the learned Judge overlooked the vital fact that the Laboratory Technician/Laboratory Assistant posted in IPGMER who obtained the said rule stood on a different footing from the present writ petitioners who are posted as Medical Technologist, under the Health Directorate, Government of West Bengal. From the materials on record we find that the duties and responsibilities of the Laboratory Assistants posted in IPGMER are quite different from the duties and responsibilities of other employees who are now designated as Medical Technologists working outside IPGMER and have different scales of pay. It is manifestly clear from the materials on record that the Laboratory Assistants posted in IPGMER were granted higher scale of pay because of the duties and responsibilities entrusted to them.

19. The circumstances gleaned form the above materials on record leave no room for scepticism that the Laboratory Assistants posted in IPGMER stand on different footing from the Laboratory Assistants posted outside IPGMER with regard to the required qualification, experience and training. The mode of recruitment and job contents are also quite different. The points of difference between them have already been mentioned earlier. If the impugned judgment and order under challenge is given effect to it will be tantamount to upgrading of the pay scale of the writ petitioners at Grade

III and Grade II posts which would have been their pay scale at the promotional post being Grade No. 1.

20. The general principle governing the rights and duties is that of equality. The principle of equality asserts that like cases should be treated in like manner and that differentiation requires justification by reference to reasonable difference between the persons concerned or in their circumstances. It has been pertinently argued by the learned Advocate for the appellant that equality of work is a question of fact and the burden of proof is on the employees who claim equal pay for equal work. Reference can be made to the case of
State of Madhya Pradesh and Anr. v. Pramod Bhartiya and Ors.
, wherein it has been clearly held by the Supreme Court that the burden to establish right to equal pay is on the person claiming the same and the principle of equal pay for equal work is inapplicable where distinction is based on qualitative difference in functions and responsibilities. The said decision cited by the learned Advocate for the appellant applies with full force to the case in hand.

The learned Advocate for the appellant cited another decision
in that case
of
Sita Debi and Ors. v. State of Haryana and Ors.
where it has been held that the persons claiming parity in pay should establish that his qualifications, duties and functions are similar to those of the persons with whom he claims parity. In the instant case no credible material was placed before us to show that the qualifications, experience, duties and functions of the writ petitioners were equal to those of the three Laboratory Assistants working in IPGMER. In our view, the writ petitioners had failed to discharge the onus of claiming equal pay for equal work and that is evidently more so when the points of difference between them and the Laboratory Assistants posted in IPGMER as shown by the appellants remain uncontroverted.

In this context reference can be made to the case of
Kishori Mohanlal Bakshi v. Union of India
, wherein it has been held that the abstract doctrine of equal pay for equal work has nothing to do with
Article 14.

In the said case of
Kishori Mohanlal Bakshi
(supra) it has been held by the Hon'ble Supreme Court that
Article 14
of the Constitution of India cannot said to be violated where the pay scales of Class I and II Income Tax Officers are different though they do the same kind of work.

21. The learned Advocate for the respondents has cited the case of
Navjyot Coop Group Housing Society v. Union of India and Ors.
, wherein it has been held that the existence of legitimate expectation' may have a number of different consequences and one of such consequences is that the authority ought not to act to defeat the legitimate expectation' without some overriding reason of public policy to justify its doing so. He has cited the case of
Pranab Kumar Roy and Anr. v. Reserve Bank of India and Ors.
, where institutional preference is held to be discriminatory.

He has also cited the case of
Gopal Narain v. State of U.P and Anr.
, in support of his contention that Geographical Classification is discriminatory. However, on careful perusal of the aforesaid decisions cited by the learned Advocate for the respondents

we find that none of them has any manner of application to the facts and circumstances of the case in hand.

Rather in the case of
Gopal Narain
(supra) it has been clearly held that equality clause does not forbid geographical classification, provided the difference between the geographical units has a reasonable relation to the object sought to be achieved. We have already pointed out that difference between the pay scales of the Laboratory Assistants posted in IPGMER and the writ petitioners is justified by reasonable difference between them and as such neither the doctrine of legitimate expectation nor the theory of institutional preference comes into play in case of the writ petitioners.

22. It has rightly been pointed out by the learned Advocate for the appellant that the equation of post and determination of pay scale is the primary function of the Executive and/or the expert bodies and the Court normally does not interfere in these matters especially when the Expert Body has expressed its opinion. The case of Federation of all India Customs and Central Excise Stenographers (Recognised) and Ors. v. Union of India and Ors. and the case of
Secretary, Finance Department and Ors. v. West Bengal Registration Service Association and Ors.
, 1993 supp (1) SCC 153 have pertinently been cited by the learned advocate for the appellant on this score.

In the case of
State of West Bengal and Ors. v. Harinarayan Bhowal and Ors.
it has been held by the Hon'ble Supreme Court at Page 83 (para 9) that in public service, nature of work in two services or in the same service, the nature of the work of the two groups may be more or less same but merely on that ground they are not entitled to the same scale of pay. It has also been held that it is well-known that scales of pay are fixed by expert bodies like the Pay Commission which consist of persons having specialized knowledge of the subject and such Commissions while fixing the scales of pay or revising the same, have to go in depth, not only into the nature of work by members of the same service and members of different services but also various other factors before the scales of pay are fixed. It has further been held by the Hon'ble Supreme Court in the said case (supra) that one of the primary concerns of such Pay Commissions is to remove any anomaly and to see that the members of different services get scales of pay and other emoluments not only according to the nature of work but also according to educational qualifications, responsibilities of the posts and experience etc. and as such before any direction is issued by the Court, the claimants have to establish that there was no reasonable basis to treat them separately in matters of payment of wages or salary. We have already pointed out that the writ petitioners who claim equal pay for equal work have failed to establish that there was no reasonable basis to treat them separately from Laboratory Assistants posted in IPGMER in matters of payment of salary.

23.
In the case of
State of West Bengal and Ors. v. Deb Kumar Mukherjee and Ors.
, 1995 supp(2) SCC 640 different pay scales for Inspectors in the Housing Department and Inspectors in the Animal Husbandry Department, Government of West Bengal have been fixed and in absence of material to

substantiate that the duties of Inspectors in the two departments were similar, disparity in their pay scales was held to be valid.

In the case of
Union of India and Ors. v. Pradip Kumar Dey
it has been held by the Hon'ble Supreme Court at page 584 that the Division Bench of the High Court was not right and justified in straight away giving direction to grant pay scales to the respondents when there was no material placed before the Court for comparison in order to apply the principle of "equal pay for equal work". It is settled law that the differentiation in pay scales among Government servants holding same posts and performing similar work on the basis of difference in degree of responsibility, reliability and confidentiality etc. would be a valid differentiation.

In this context reference can be made to (supra), and the case of
State of Haryana v. Jasmer Singh
. The following observations of the Hon'ble Supreme Court in are required to be mentioned in this context. "The principle of 'equal pay for equal work' is not always easy to apply. There are inherent difficulties in comparing and evaluating work done by different persons in different organizations, or even in the same organization. The principle was originally enunciated as part of the Directive Principles of State Policy in
Article 39(d)
of the Constitution.

In the case of
Randhir Singh v. Union of India
, however, this Court said that this was a constitutional goal capable of being achieved through constitutional remedies and held that the principle had to be read into
Articles 14
and
of the Constitution. In that case a Driver-Constable in the Delhi Police Force under the Delhi Administration claimed equal salary as other Drivers and this prayer was granted.

The same principle was subsequently followed for the purpose of granting relief in
Dhirendra Chamoli v. State of U.P.
and
Jaipal v. State of Haryana
.
In the case of Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India, however, this Court explained the principle of 'equal pay for equal work' by holding that differentiation in pay scales among Government servants holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. In that case different pay scales fixed for Stenographers (Grade I) working in the Central Secretariat and those attached to the heads of subordinate offices on the basis of a recommendation of the Pay Commission was held as not violating
Article 14
and as not being contrary to the principle of 'equal pay for equal work'. This Court also said that the judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court".

24. Having regard to the above noted principles of law and the facts and circumstances emerging from the materials on record we are of the view that the Laboratory Assistants and X-ray Assistants now designated as Medical Technologists both in Grade II and Grade III working in various hospitals and Health Centres in West Bengal who are in pay scale Nos. 6

and 8 are not entitled to the same pay scale No. 11 similar to that of the Laboratory Assistants posted at IPGMER. The learned Judge was not at all justified in granting relief as claimed by the writ petitioners by invoking the doctrine of equal pay for equal work.

For the foregoing reasons we allow both the appeals and set aside the impugned judgment and order dated 11th April, 1994 whereby the learned single Judge of this Court disposed of body C.R. No. 16892(W) of 1984 and C.R. No. 12735(W) of 1984. Both the writ petitions are accordingly dismissed.

There will be no order as to costs.

Xerox certified copy of this judgment, if applied for, be given to the parties expeditiously.

T. Chatterjee, J.

25. I agree.